PSA: A law to curb smuggling, but used against political rivals

SRINAGAR: In 1978, the Jammu and Kashmir government led by its legendary leader Sheikh Muhammad Abdullah introduced the J&K Public Safety Act (PSA) as a tough law to prevent the smuggling of timber and keep the smugglers "out of circulation". The Act received the assent of the J&K governor on April 8 the same year.

The PSA allowed the government to detain any person above the age of 16 without trial for two years. However, such detentions are subject to periodical reviews by an official screening committee and can be challenged in open courts as well.

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 bars.

The modus operandi adopted by the authorities is: the district magistrate concerned 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.

As per the 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.

Also, the law has often been used by the successive state governments against their political opponents drawing severe criticism from human rights groups at home and abroad. Also, following the outbreak of militancy in the state in 1989-90, the authorities frequently invoked the PSA to crack down on separatists and their supporters.

In 2012, the state legislature amended PSA by relaxing some of its strict provisions. In case of first-time offenders or individuals who "act against the security of the state", the detention period 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 PSA has two sections - 'public order' and 'threat to security of the state'. It allows for administrative detention for up to two years "in the case of persons acting in any manner prejudicial to the security of the state", and for administrative detention up to one year where "any person is acting in any manner prejudicial to the maintenance of public order".

Detention orders under PSA can be issued by divisional commissioners or district magistrates. The detaining authority need not disclose any facts about the detention.

Under Section 22 of the Act, protection is provided for any action taken "in good faith" under the Act: "No suit, prosecution or any other legal proceeding shall lie against any person for anything done or intended to be done in good faith in pursuance of the provisions of this Act."

Under Section 23 of the Act, the government is empowered to "make such rules consistent with the provisions of this Act, as may be necessary for carrying out the objects of this Act".

In June this year, Amnesty International (AI) in a report termed the PSA 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” analysed the case studies of 210 detainees who were booked under the PSA. "This Act is contributing to inflaming tensions between the state authorities and local populace and must be immediately repealed," Aakar Patel, head of AI, India had said.

The report has also said that the PSA violates 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 provided 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.

The report further said that the 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.

Last year, the Office of the United Nations High Commissioner for Human Rights had also expressed concern over what it called arbitrary use of PSA by the authorities in the restive state. Its report had 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 human rights violation in J&K and the situation prevailing in PoK and Gilgit-Baltistan region, calling it “fallacious, tendentious and motivated”.