Jammu and Kashmir Public Safety Act, 1978

The Preventive Detention Act of 1950 came into force within a month after the Constitution of India came into force.[8] While enacted for only one year, it was renewed year after year until 31 December 1969. The next major preventive detention legislation came in the form of the Maintenance of Internal Security Act of 1971.[8]

Currently the provision for preventive detention in India exists under the Code of Criminal Procedure, which draws its roots from laws in British India.[9][10] The Jammu and Kashmir Public Safety Act of 1978 is only one of the acts in India that cater to prevention detention at a state level. While some states have their own preventive detention acts, there are four central acts covering preventive detention at a national level: the National Security Act (NSA) of 1980, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) of 1974, the Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities Act of 1980, and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.[10] The time duration of detention permitted under these acts varies from 24 hours to over a year.[9]

The Public Safety Act has its roots in the Defence of India Act of 1915, passed during British rule,[11][12] and later in the 1946 Public Security Act which was used by the British to repress the Quit Kashmir Movement.[13] This was replaced in 1954 with a temporary Preventive Detention Act by the Jammu and Kashmir government, which was again ratified in 1958 followed by numerous amendments leading to the Jammu and Kashmir Public Safety Ordinance in 1977. This was then amended into the 1978 Public Safety Act enacted by Sheikh Abdullah.[13] The 1978 PSA was amended in 1987, 1990, 2012, and as recently as August 2018 to allow individuals to be detained outside the state.[14]

The Public Safety Act 1978 consists of five chapters and 24 sections.[15] The five chapters cover:

CHAPTER I Preliminary
CHAPTER II Access to certain premises and areas
CHAPTER III Maintenance of communal and regional harmony
CHAPTER IV Power to make orders detaining certain persons
CHAPTER V Miscellaneous

Chapter II of the act allows the state to limit access to certain places, designating them as "prohibited places" and "protected areas". Violators can be fined and punished. Chapter III allows the government to forbid the circulation of harmful documents.[12]

Chapter IV of the act details "detention of certain persons" including those who qualify as a foreigner or "a person residing in the area of the State under the occupation of Pakistan" to prevent them "from acting in any manner prejudicial to... the security of the state or the maintenance of public order" or those involved in smuggling or abetting the smuggling of timber or liquor.[12]

Notably there is a provision, Grounds of detention severable, (10.A.a) that goes on to state that the:[15]

order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are–– (a) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reasons whatsoever...

In the act the meaning of timber is elaborated: "'Timber' means timber of Fir, Kail, Chir or Deodar tree whether in logs or cut up in pieces but does not include firewood".[15]

In 2015 the government made public the figure of 16,329 persons having been detained under the act since 1988, nearly all from Kashmir.[5] National Crime Records Bureau records only 16 women detentions in the period 1995-2008.[6] In 2010, an Amnesty International report estimated there had been 10,000 to 20,000 arrests under the act since its inception.[33][27][34]

In 2016, around 600 people were detained under PSA orders.[33] The courts have annulled hundreds of detention orders over the years.[27] Masarat Alam's was one of the detention orders quashed in December 2016.[33] Data from an RTI revealed that between April 2016 and December 2017, 99.40% or 998 cases were found to be suitable for detention by the Advisory Board; however, in the same time period, the Jammu and Kashmir High Court annulled the detention orders in 81% of the admitted 941 cases.[35][36]

Following the Jammu and Kashmir Reorganisation Act of 2019, numerous people were detained under PSA and CrPC; and as of 11 March 2020, 396 persons were still detained under PSA.[37]

Under Section 8 of the act, a Divisional Commissioner or a District Magistrate, both executive authorities, may issue a detention order to prevent anyone from acting in a manner prejudicial to the "security of the State or the maintenance of the public order".[38]

Under Section 13 of the act, the detaining authority is required to inform the person detained, the grounds of detention within 10 days of detention in a language they understand. However sub-section 2, allows the authority to hold back any information that it considers "against the public interest to disclose".[38]

At the same time, the authority is required to inform the State Government about the order and get it approved in 12 days, for the order to remain in force.

All detention orders, along with the grounds of the orders and representations (if any) must be placed before a non-judicial Advisory Board within 4 weeks of the detention.[38]

The Advisory Board is then required to review the detention order, representation and any information necessary and submit its report to the State Government within 8 weeks of the detention. However, the person detained is not entitled to any legal counsel, since PSA explicitly bars detainees from being represented by legal counsel before the Advisory Board.[38]

Further, Section 22 of the act, provides immunity to the officials involved, providing a complete bar on legal proceedings against any officials for anything done or intended to be done in good faith in pursuance of the provisions of this Act.[38]

Under international human rights law, restrictions on liberty must obey the principle of legality: they must be adequately accessible and precise so that people can regulate their conduct according to it.[41]

However, the PSA does not define "security of the state", and provides a vague and over-broad understanding of "public order". The operative provisions of the act are too broad and vague that they end up granting the authorities sweeping powers, at the same time seriously diminishing any real possibility for persons detained to contest the legality of the detention order.[42]

Section 13 of the act, allows the authority to not communicate grounds of detention for up to 5 days, which can be extended to 10 days of detention.[38] Article 9(2) of the ICCPR provides that anyone arrested has a right to be immediately informed about the grounds of the arrest, which also applies to preventive and administrative detentions.[43]

And at the same time, the Sub-Section 2, allows the authorities to withhold any information that it considers "to be against public interest" to disclose, which has been abused many times by the authorities to withhold significant information from the person detained.[38] Such provisions of non-disclosure are in violation of Article 9(2) of the ICCPR.[43]

Under Article 9(4) of the ICCPR, every person deprived of their liberty, whether arrested or detained has a right to a judicial review,[43] however, PSA makes no such provisions and instead an Advisory Board, a non-judicial body appointed by the government on the recommendations of a three-person committee comprising senior state bureaucrats reviews all the orders.[42]

Detained persons have the right to communicate with and be represented by a counsel of their choice, however, Section 16 of the Public Safety Act, states that any person against whom a detention order has been made is not entitled to legal counsel with respect to the Advisory Board and its proceedings.[38]

Section 16 not only disregards the "right to communicate with and be represented by counsel of choosing in the determination of criminal charges" guaranteed by Articles 14(3)(b) and (d) of the ICCPR but also undermines the right to challenge the legality of detention set out in Article 9(4).[43]

Everyone has a right to a remedy under international human rights law and standards.[44]

However, Section 22 of the Public Safety Act, provides a complete bar on criminal, civil or "any other legal proceedings...against any person for anything done or intended to be done in good faith in pursuance of the provisions of this Act", thus enabling impunity by protecting officials even in situations where PSA is abused.[38]

The data regarding the number of humans detained under PSA throughout the years has been quite inconsistent, with figures widely conflicting with each other.[42] For example, in January 2018, the J&K government said only 525 persons were detained under PSA in 2016, which was almost half the number quoted by media reports in 2019.[45] The government also said, 201 persons were booked in 2017, when the official data says that more than double, 410 were booked under PSA.[45]

This can be further seen in the 2011 report by Amnesty International,[46]

While Amnesty does not consider either of the sources entirely reliable, it stresses on the fact that government stats are often inconsistent, for example, it says for 1997, the NCRB notes 725 detainees, but in a reply to a petition before NHRC, the Central Government counsel submitted on record that as of December 1997, 1016 persons were held under preventive detention in J&K.[46]

An order of administrative detention under the PSA can be passed by the District Magistrates and Divisional Commissioners, thus making it a purely executive exercise of power.[38]

The Supreme Court of India has stated: "Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law… Preventive detention is often described as a "jurisdiction of suspicion". The detaining authority passes the order of detention on subjective satisfaction… To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital."[47]

An RTI application to the J&K Home Department filed by members of the J&K RTI Movement revealed that the State Government of J&K has not made any Rules or Standard Operating Procedures (SOPs) under PSA, during the four decades of its existence.[48] Every year the detaining authorities have been issuing detention orders without any SOPs to guide them except the reports and dossiers prepared by the J&K Police.[48]

In an interview with Amnesty International, a former District Magistrate said that the Magistrates do not have dedicated assistance available, which could verify and seriously examine the police version, thus the District Magistrate as to necessarily rely on the reports filed by the police. Thus reducing their role to mere rubber stamps.[42]

Amnesty India observed a common flaw in the detention orders where the detaining authorities reproduced word-for-word the dossier given by the police which contained the allegations against the person detained.[42]
Many such detention orders have been quashed by the High Court, for example in May 2017, a detention was quashed by the High Court, stating among other reasons: "Perusal of grounds of detention would show that it is a verbatim copy of Dossier of Senior Superintendent of Police submitted by him to the Concerned Magistrate."[49]

Since the PSA does not make any provision for judicial review or any appeal process to detainees, under Section 14 of the PSA, a non- judicial body, Advisory Board is set up to review detention orders and determine whether there is sufficient cause for detention. The Advisory Board examines the case only in the initial stages of the detention. There is no provision in the PSA to appeal against the decision of the Advisory Board.[38]

Advisory Board consists of two members and a chairperson, which are appointed by the government. Prior to the Jammu & Kashmir (Preventive Detention Laws) Ordinance 2018,[50] the members of the Advisory Board were appointed by the Government in consultation with the Chief Justice of the High Court.[38]

The ordinance removes the mandatory requirement of consultation with the Chief Justice of the J&K High Court.[50] Now the members – provided they were not sitting judges – would be appointed by the government on the recommendations of a 3-person committee made up of senior state bureaucrats.[50] Thus enhancing the role that the executive play and reducing the independence of the Advisory Board.[42]

The Advisory Board is required to review the grounds of detention and the representation, if any, by the person detained. Anyone detained under PSA is not entitled to legal counsel.[38]The board is known for almost always upholding the detention orders passed by executive officials. For example, an RTI application[51] filed by two students of the Department of Law, University of Kashmir revealed that the Advisory Board was referred 1004 detention orders by the State Government between April 2016 and mid-December[51] and it found sufficient cause to uphold the detention order in 99.40% cases.[51]

The J&K High Court quashed more than 81% of the detention orders that the Board upheld earlier in the same period.[51] The RTI also revealed that the Advisory Board spent more than 75% of its total expenditure in 2016-17 to uphold detention orders which were quashed later on by the court.[51] It was observed by Amnesty International was informed that in many cases, detainees refuse to file representations before the Advisory Board, as they see no hope of a proper hearing.[42]

During a preventive detention case under PSA in 1982, the Supreme Court of India said: "danger looms large that the normal criminal trials and criminal courts set up for administering justice will be substituted by detention laws often described as lawless law".[12]

Indian lawyer and constitutional expert A. G. Noorani said PSA is "patently, manifestly and demonstrably unconstitutional", adding that it is a way of bypassing "civilized jurisprudence" and "a devious way to imprison political opponents".[33] "The upper limit on the period of detention is frequently violated" notes historian Mridu Rai.[52] Mohmad Aabid Bhat writes in Insight Turkey that the excuse of "public order" and "security" is being used to justify inhumane laws such as PSA.[53]

A report by Observer Research Foundation titled "Life in Kashmir after Article 370" dated 28 January 2020 recommended the immediate repeal of the PSA.[4]