Detention law in Valley draws flak from Amnesty

Srinagar: Public Safety Act (PSA), Jammu and Kashmir’s much-criticised detention law, is once again under fire from international human rights watchdogs for allegedly being used by the state authorities to keep people who cannot be convicted through proper legal channels locked up and out of circulation.

Last week, Amnesty International (AI) in a report termed the PSA as a “lawless law” and said that it circumvents the criminal justice in J&K “to undermine accountability, transparency and respect for human rights”.

The 35-page report titled Tyranny of a ‘lawless law’: Detention without charge or trial Under the J&K Public Safety Act’ was to be released at a press briefing by the AI at a Srinagar hotel but the authorities denied permission to hold it, citing the prevailing law and order situation in the valley. The AI after cancelling the event released the report to media through e-mail.

PSA was introduced in the state during the Sheikh Muhammad Abdullah’s government in 1978, initially to discourage timber smuggling but it has often been used by the successive state governments against their political opponents drawing severe criticism from human rights groups at home and abroad.

Under the PSA, a person can be detained up to a period of two years without seeking a formal trial. However, such detentions are subject to periodical reviews by an official screening committee and can be challenged in open courts as well.

In 2012, the state legislature amended PSA by relaxing some of its strict provisions. In the case of first-time offenders or individuals who “act against the security of the state” for the very first time, the detention period for such individuals was reduced from two years to six months. However, the option of extending the term of detention to two years was kept open, “if there is no improvement in the conduct of the detainee”.

The IA report analyses the case studies of 210 detainees who were booked under the PSA. While revisiting the law in the 42nd year of its existence, the report states that it continues to facilitate administrative detentions and violates Indian and international human rights laws. “This Act is contributing to inflaming tensions between the state authorities and local populace and must be immediately repealed,” said Aakar Patel, head of Amnesty International India.

The report says that the PSA violates also several of India’s obligations under international human rights law including respecting detainees’ fair trial rights. Examining several government and legal documents of the detainees, the briefing provides a pattern of alleged abuse by J&K authorities. This includes detaining children, passing PSA orders without due diligence and on vague and general grounds, ignoring the limited safeguards under the Act, subjecting individuals to “revolving-door detentions”, and using the PSA to prevent release on bail and undermine the criminal justice system.

The report claims that the AI found 71 cases of “revolving-door detentions”, where authorities had either issued a new detention order, or implicated a detainee in a new FIR, to ensure that they remain in detention. “In ninety percent of the cases analysed, detainees faced both PSA detentions and criminal proceedings in parallel, on the basis of the same or similar allegations,” it says.

The report further says that police appear to use the PSA as a safety net, using it to secure the detention of suspects who are released, or likely to be released, on bail. “Conversations with the local lawyers suggest that the state police do not favour criminal proceedings as they involve a higher standard of proof and a presumption of innocence,” said Zahoor Wani, who led the research of the briefing for AI India.

Acccording to the report, Amnesty India also found that in many cases the grounds of detention mentioned in the police dossiers and in the PSA orders passed by the district magistrate were identical “which demonstrates non-application of mind”. “Further, regressive amendments to the Act in 2018 have also led to detainees being held in prisons far from their homes, in violation of international human rights standards”, it says adding that the people who were arbitrarily slapped with PSA and later acquitted, meanwhile, continue to face difficulties in obtaining jobs or continuing their education.

AI India called for immediate repeal of the PSA and other legislation facilitating the use of administrative detentions and urged the J&K government to ensure that all detainees held in administrative detention are released. “The authorities should also provide full reparation to all detainees held in unlawful detention under PSA. The J&K government should also initiate prompt, independent and impartial investigations into all allegations of unlawful detention and torture or other ill-treatment in custody, and bring to justice those responsible,” it said.

Mr Patel said, “While the J&K high court routinely quashes detention orders which fail to comply with procedural safeguards, it does little to tackle the impunity enjoyed by executive authorities”. He added, “Jammu and Kashmir will elect a new state government in 2019. This government will have a chance to break with the past and show the people of Jammu and Kashmir that their rights matter. It must not waste this opportunity.”

Last year, the office of the United Nations high commissioner for Human Rights also expressed concern over what it called arbitrary use of PSA by the authorities in the restive state. The report said that more than one thousand people were held under the PSA between March 2016 and August 2017 and that the officials who issue detention orders rely solely on dossiers prepared by police “who don’t verify facts”.

The Indian government had rejected the report which also spoke about increasing incidence of human rights violation in J&K and the situation prevailing in PoK and Gilgit-Baltistan region, calling it “fallacious, tendentious and motivated”. The modus operandi adopted by the authorities is; the concerned district magistrate issues detention order under the PSA after police prepares a case file or ‘dossier’ against the accused detailing why he or she needs to be detained under the act and submits it to him. In most cases, the district magistrates pass detention orders without questioning the police dossier.

Critics say that though a person detained under the PSA can approach the high court to get relief, the police and the administration usually resort to “revolving door detention”-a detainee on being released by the court is immediately slapped with another PSA order and the cycle continues till the authorities want him to be behind the bars.

As per the available statistics, the use of the PSA has only increased in past few years. In fact, the number of persons detained under it only doubled in 2018 in comparison to 2016. As many as 510 persons were booked in the valley under the PSA in 2018, as compared to 230 in 2016.

In 2017, a total of 410 people were booked under this law. Most of the detainees have been shifted out of Kashmir Valley and lodged in jails in Jammu region and even outside the state lately.