In the past few days, former J&K Chief Minsters, Omar Abdullah and Mehbooba Mufti, among other prominent leaders of the Valley have been booked under the controversial PSA which has been dubbed as draconian by many. This is after, they have already been under detention since August 2019.
The Act in brief
The main objective of Public Safety Act, as per the enactment, is “Whereas it is necessary in the interest of the security of the State and public order to make law providing for measures hereinafter appearing”.
The haphazard manner in which the law is being implemented is apparent from its blatant use on political detainees who have been kept in detention ever since Article 370 of the Constitution was revoked, following an amendment to the Constitution.
One of the main provisions of the law gives the Government power to detain a person without charge or trial or substantive evidence, power to detain any person who, the government deems to be prejudicial to public order. This allows execution of capricious actions having legal standing. The law is also rife with vague definitions of terms leaving the interpretation up to the executive and further the courts of law, once such imposition is challenged.
The Act allows detention of persons without trial or forming of charges. It allows the government to detain a person for as long as 4 weeks without having to produce them before an authority, in this case, an Advisory Board. The law provides very superficial means of redressal for the detenu and it is clear that the legislators intended to subdue to the detenu to a point where he could resort to legal proceedings only after a considerable period of time has passed, after facing the Advisory Board. These are just few of the provisions of the Act that act against the civil liberties of an individual once his actions are deemed fit for application of this law.
CJP has conducted an in-depth and simplified analysis of this law, when allegedly minors were detained under the provisions of this Act, which the Act itself prohibits.
Leaders detained
The PSA has once again been invoked, this time for prominent political leaders of the valley, namely, Omar Abdullah and Mehbooba Mufti.
Omar Abdullah’s sister has challenged the detention of her brother under PSA on 5 grounds, such as the basis on which detention order passed was not disclosed to Omar and is based on false material, the order is vague and no fresh grounds exist for his detention apart from his previous detention, since August 2019. Omar Abdullah’s father, Farooq Abdullah was charged under the same law last September and has been under detention since August as well.
Further, PDP leader Naeem Akhtar has also been detained under PSA for exhorting people to read Kashmiri separatist leader Syed Ali Shah Geelani’s book while he was the state’s education minister, among other reasons, according to a dossier accessed by news agency IANS. The dossier said PSA was slapped on Mr Akhtar as he had alleged that BJP is playing a dangerous game for electoral gains in the country and inciting communal hatred to win elections. It said the statements of Mr Akhtar are indicative of the fact that he is bent upon not allowing public order to return and to disturb the peace process.
Basically, statements made against the government are being termed as actions against the Union of India and any criticism against the Central government is being deemed as an offence under PSA, to justify the detentions.
Recently, during the ongoing budget session of the parliament, the Rajya Sabha as informed that 389 people in Kashmir have been detained under PSA.
Even the Jammu and Kashmir High Court has washed it hands off the matter saying, “A court is not a proper forum to scrutinise the merits of an administrative decision to detain a person. The court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not”.
Justice Tashi Rabstan while dismissing a petition seeking the release of Kashmir High Court Bar Association president Mian Abdul Qayoom said that “A law of preventive detention is not invalid because it prescribed no objective standard for ordering preventive detention, and leaves the matter to subjective satisfaction of the executive.” In fact the reasons mentioned in the detention order are for actions of 2008 and 2010 for which Qayoom was already detained in 2010 and hence, the counsel appearing for him pleaded that the same reasons cannot be invoked again; bu the court paid no heed to this contention.
Many lawyers have voiced an opinion that the court of law cannot absolve itself from reviewing administrative decisions and the J&K High Court’s observation as not in accordance with the law. Former advocate-general Ishaq Qadri told The Telegraph, “It (judgment) is contrary to its decisions. Around 99 per cent of PSAs have been quashed by courts in the past 30 years here.”
The son of a Lok Sabha MP, Akbar Lone belonging to National Conference, has also been detained under PSA in the past 2 days. Hilal Lone has been in detention, just like the others, since August 2019. He has been booked under the PSA as the union territory administration felt that his release could hamper the law and order situation in north Kashmir.
Mufti’s PSA dossier mentions some ludicrous reasons for justifying her detention as per the provisions of the draconian law. Her dossier reads, “The subject (Mufti) is referred, for her dangerous and insidious machinations and usurping profile and nature, by the masses as ‘Daddy’s girl’ and ‘Kota Rani’, based on the profile of a medieval queen of Kashmir, who rose to power by virtue of undertaking intrigues ranging from poisoning of her opponents to ponyardings”.
Centre’s intention
Clearly, the Centre has had to either cook up reasons or dig out old statements made by these individuals in order to invoked PSA against them. This is being done so that the Centre can detain these persons up to two years without any legal hindrances to that regard. Now that the High Court has itself closed its doors for these detained persons, as many as 389 in number as per government figures, the only and last recourse remains the Supreme Court. This seems like an attempt to leave these individuals with only one legal recourse, that is of the highest court of the land so that if this court does not rule in their favour, without fresh grounds, no other person detained under PSA can seek recourse to any legal remedy. This is effectively closing all doors of redressal for these detained individuals giving the centre unbridled powers which seems to be controlling more agencies than it can account for. The reasons stated in the PSA dossiers of those detained are blatant examples of how the centre is misusing the PSA to catch hold of and detain individuals who have criticised the government and to get rid of such dissenters so it can have its way in the decisions related to the Valley, without any political resistance.
Related:
J & K’s PSA Law: How Draconian is Draconian?
100 Days into J&K Reorganisation, Fake News Blurs Reality
Wrong intention, wrong rationale, wrong method: Teesta Setalvad on CAA-NPR-NRC
Communal Riots 2019: Communal Discourse Raging On in India
Saffron raising red flags since 2014?
Kashmir reappears on the UNSC radar after 49 years!