“The situation is still very worrying in Kashmir. Reporters are often harassed by police and paramilitaries and must cope with utterly Orwellian content regulations, and where media outlets are liable to be closed.”
CNN’s Mukhtar Ahmad, Reporters Without Borders

Fahad Shah, a prominent Kashmiri journalist detained on draconian charges under the Unlawful Activities (Prevention) Act (UAPA), completed 500 days in prison on June 18. Shah, the founder-editor of ‘The Kashmir Walla’, was arrested by Pulwama police on February 4 last year under the colonial UAPA law for allegedly uploading “anti-national” content on social media. He was afterwards detained five times over the course of four months, suffering though a Kafkaesque experience where he was subsequently arrested after every bail. 

In the 17 months since his incarceration under many charges, jugging around in different jails, Shah has obtained three rounds of bail, including two in UAPA cases! An Order under the Public Safety Act (PSA) against him has been quashed! Yet he remains imprisoned in connection with a case stemming from an opinion piece published in Shah’s publication in the year 2011. 

His detention has been described as the “final nail in the coffin of independent journalism in Kashmir.” The arrest of Shah sent waves of shock through the already shattered and targeted Kashmiri journalism community, with many going into hiding or leaving the field entirely. Furthermore, the application of such harsh draconian laws by the police, blurring the line between independent reporting and “propagating stories that are contrary to the interests and security of the nation,” were another grave cause of concern. 

Misuse of law- charges filed, bails granted

Bail under draconian laws: On February 4, 2022, Shah was arrested by the Pulwama police under sedition and anti-terror law, after ‘The Kashmir Walla’ had reported the events of a gunfight between the government forces and militants in south Kashmir. He was granted bail by the National Investigative Agency (NIA) court in Srinagar on February 26, 2022. 

However, the Shopian police promptly detained him again in a case that was filed in January 2021 against his portal’s reporting. Shah was again released on bail on March 5, 2022, by a Shopian court magistrate, but Srinagar police later detained him again in connection with reporting for his news portal in July 2020.  On March 14, 2022, Shah was then detained under the PSA and lodged in the Kupwara Jail.

The PSA order quashed: In April 2023, the Jammu and Kashmir High Court overturned the PSA order against Shah, calling the imprisonment “illegal” and the “non-application of mind” on behalf of detaining authorities. 

Terming the journalist’s imprisonment to be “illegal” and the “non-application of mind” on behalf of detaining authorities, the court had said: A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the “maintenance of public order”. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact.

A single bench of the Jammu and Kashmir High Court, led by Justice Wasim Sadiq Narwal, had noted that the authorities “did not carefully evaluate and apply their thoughts while passing the detention order”. The bench has said that the apprehension of an adverse impact to public order “is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detainee was released on bail on January 8, 2021 and detained with effect from June 26, 2021”. 

The court decided that Shah was the target of “grave” charges. “However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding,” the order read. “The powers of preventive detention are exceptional and even draconian.” 

Detained for his opinion piece: Shah was being held at Kupwara Jail in north Kashmir under the PSA when the State Investigation Agency (SIA) arrested him on May 20, 2022, for questioning in a case. 

Shah’s custody was taken over from the Kupwara jail in order to investigate the SIA’s FIR number 01/2022, which was lodged at the Joint Interrogation Centre in Jammu, against an opinion piece written by Abdul Aala Fazili, a scholar from Kashmiri University, which was published 11 years ago in The Kashmir Walla and titled as “The Shackles of Slavery Will Break”. However, the agency issued a chargesheet in the case in which Shah and a Fazili are still imprisoned in Jammu’s Kot Bhalwal jail ten months after the arrest.

Fahad Shah not the lone Kashmiri in jail, remember Khurram Parvez?

In addition to Shah, Kashmiri human rights defender Khurram Parvez has also been languishing in jail since almost 1.5 years, arrested on November 22,  2021 under the draconian anti-terrorism legislation, and is currently detained in Rohini Jail, Delhi. Parvez is a human rights defender that has worked tirelessly to document human rights violations in Jammu and Kashmir for the past 20 years. He is the Coordinator of the Jammu and Kashmir Coalition of Civil Society (JKCCS) and the Association of Parents of Disappeared Persons (APDP), and the Chairperson of the Asian Federation Against Involuntary Disappearances (AFAD). 

Parvez was unlawfully, unjustly and arbitrarily detained by NIA officers after a 14-hour raid on his home and the JKCCS office in Srinagar, during which his electronic devices and several documents were confiscated. Since then, Parvez has been prosecuted on a slew of fabricated allegations relating to criminal conspiracy and terrorism, and his fundamental rights to due process and a fair trial have been repeatedly violated. In addition to the UAPA allegations filed against Parvez, the NIA filed another case against him and journalist Irfan Mehraj in October 2020, explicitly targeting JKCCS and anyone involved with the group.

In an opinion adopted on March 28 2023 and released on June 5 2023, the UN Working Group on Arbitrary Detention (WGAD) stated that the detention of activist Parvez was “arbitrary”. It called upon the Indian authorities to immediately release him and to provide him with an “enforceable right to compensation and other reparations.”

“The UN ruling on Khurram Parvez’s case authoritatively confirms that his detention is an act of reprisal for his human rights work, and an attempt to silence him and Kashmiri civil society as a whole. The Indian authorities must implement the UN’s recommendations and immediately release Khurram,” said Alice Mogwe, International Federation of Human Rights (FIDH) President, as reported by the civicus.org.

It is essential to note that the WGAD is mandated by the UN Human Rights Council to investigate alleged cases of arbitrary detention. The WGAD considers individual complaints and adopts opinions on whether the detention of a particular individual is considered to be arbitrary. This WGAD opinion was issued in response to a complaint filed jointly by FIDH, CIVICUS, FORUM-ASIA and the World Organisation Against Torture (OMCT) to the UN body on behalf of Parvez on November 22, 2022.

“The arbitrary and unjust detention of Khurram Parvez is not an isolated incident but the result of India’s relentless attacks on those who expose the Bharatiya Janata Party-led government’s discriminatory and abusive policies. India must reverse its politics of silencing dissent and guarantee the right to defend human rights in the country”, said Gerald Staberock, OMCT Secretary General, as reported by the civicus.org.

Additionally, the WGAD expressed serious concern about “the chilling effects” of Mr. Parvez’s arrest and prolonged detention on civil society, human rights defenders and journalists in India. Furthermore, the WGAD found that Parvez’s deprivation of liberty is in contravention of Articles 2, 7, 9, 11, 19 and 20 of the Universal Declaration of Human Rights and 2, 9, 14, 15, 19, 22, and 26 of the International Covenant on Civil and Political Rights.

The WGAD also determined that the authorities failed to establish a legal basis for Parvez’s detention (Category I); that his detention stemmed from his “legitimate exercise of freedom of opinion, expression and association” (Category II); that the “violations of Mr. Parvez’s right to a fair trial are of such gravity as to give his detention an arbitrary character” (Category III); and that he was deprived of his liberty on “discriminatory grounds, owing to his status as a human rights defender and on the basis of his political or other opinion” (Category V).

FIDH, CIVICUS, FORUM-ASIA and OMCT welcomed the WGAD’s opinion and reiterated their calls for the immediate and unconditional release of Khurram Parvez and all other human rights defenders currently in prison in India, and for all charges to be dropped.

Conclusion

Activists, writers, students, academics, and journalists have reported an increase in intimidation in recent years, as well as attempts to silence any critics of the current government’s decisions on Kashmir, the deployment of the army under the Armed Forces (Special Powers) Act (AFSPA), and the repeal of Article 370. 

Sedition charges, legislation dating back to the British colonial era, have been on the rise. The application of these harsh and severe rules has grown so lax that hundreds of people, including poets, political organisers, activists, and human rights advocates, have been imprisoned under an antiterrorism statute, the UAPA and the PSA. 

Kashmiri journalists have long been caught between deadly militants deploying arms and terror tactics and the repressive Indian government, which has tried to maintain a tight control this region of Kashmir. 

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The post Kashmiri journalist, human right defender languishing in jail under a draconian law appeared first on SabrangIndia.

The Jammu and Kashmir High Court has quashed the detention of journalist Peerzada Fahad Shah, the editor-in-chief-cum-director of digital news portal ‘Kashmir Walla’. Justice Wasim Sadiq Nagral observed that the detention order should be set aside since it not only had technical infirmities but also since the detaining authority did not apply its mind while issuing the order. Peerzada was arrested for publishing an article written by Kashmir University scholar Abdul Ala Fazili titled “The Shackles of Slavery Will Break” on April 4 2021.

Background of the case

Peerzada was placed under preventive detention under the Jammu and Kashmir Public Safety Act by the District Magistrate vide order dated March 11, 2022.

It was submitted on behalf of Peerzada that he is a reputed journalist having earned a good name and fame on international level in the field of honest and fair journalism while also being a peace loving citizen. It was contended that the allegations against him are baseless and vague and without any iota of truth to them. Peerzada was arrested on February 4, 2022 by Pulwama Police and booked him under Section 13 of UAPA [whoever advocates, abets, advises or incites the commission of, any unlawful activity], Section 124A [sedition] and Section 505 [Statements conducing to public mischief] IPC. In this case, Peerzada was granted bail and and when the order of the Court was served upon the police concern, they did not release him and shifted him to the Police Station Imam Sahib Shopian where on the same set of allegations, another FIR was registered. Once again he was granted bail and once again shifted to another Police station namely, Safakadal, Srinagar where one more FIR on the same set of allegations was registered and then a detention order under PSA was passed against him.

The Government Advocate, Sajjad Ashraf submitted that Peerzada was detained validly and legally by virtue of detention order and all statutory requirements and Constitutional guarantees have been fulfilled and complied with. He further submitted that the grounds of detention give a clear picture and the activities of the detenu were highly prejudicial to the maintenance of public order and respondents had no option but to detain him. It was also submitted that detenu was found involved in various anti-national nefarious activities.

Court’s observations

After analysing the record, the court found that relevant material or dossier was not provided to the detenu. Relying upon Supreme Court’s decision in Icchu Devi Choraria vs Union of India (1980) 4 SCC 531 , the court held that non-supply of dossier and the relevant material vitiates the detention order and cannot sustain the test of law and is liable to be quashed. In the said case, the apex court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference. The right of the detenu to be supplied, copies of such documents, statements and other materials flow directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention because unless the former right is available the latter cannot be meaningful. (Para 26)

Public order and state security not interchangeable

Another question raised by the court was “Whether the concepts of “public order” and “security of state” are distinct and separate”. The court cited G. M. Shah vs. State of J&K AIR 1980 SC 494, where Supreme Court had held that “law and order”, “Public order” and “security of the State” are distinct concepts, though not always separate and while every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the “security of the State. (Para 29)

The court held that the detaining authority “used both the expressions “Public Order” and “Security of the State” with a wavering mind and uncertainty and accordingly, the detention order gets vitiated and cannot sustain the test of law and is liable to be quashed.” (Para 33)

The court observed that the ground of detention in one place mentions that activities of the detenu leads to disturbance of public order and in concluding part it mentions that the detenu’s activities are prejudicial to security and sovereignty of the country. The court thus observed that the detaining authority did not carefully evaluate and apply their thoughts while passing the detention order.

Under section 8 of the PSA, “public order and Security and Sovereignty of the country are two distinct expressions and have different connotations and are demarcated on the basis of gravity and cannot be used simultaneously which clearly proves beyond any shadow of doubt that the detaining authority has not applied its mind while passing the order of detention” (Para 36).

The court held thus,

“From the perusal of grounds of detention, it is manifestly clear that the same are vague and bald assertions without any specific details with the result that the detenu was unable to file a meaningful and effective representations. Besides the specific averment of the detenu that he has not been provided copy of the dossier and other relevant material including copies of FIRs which have been referred and relied by the detaining authority while framing grounds of detention and passing the detention order against the detenu, has not been specifically denied by the respondents and is also borne from the record.” (Para 36)

The court also found the action of the respondents to be violative of Article 22(5) of the Constitution read with section 13(2) of PSA.

Article 22(5) reads as follows:
 

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order

Section 13(2) of PSA reads as follows
 

13. Grounds of order of detention to be disclosed to persons affected by the order-

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose

Procedural requirement not followed

Further, another procedural requirement was not fulfilled since the person who executed the detention order did not swear on affidavit. The court relied on Supreme Court judgement in Abdul latief Wahab Sheikh Vs. B. K. Jha, 1987 (2) SCC 22 where the court held that the procedural requirements are the only safeguards available to detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority.

No compelling reason

The court further held thus,

“That no compelling reasons have been given or shown by the detaining authority while passing the impugned order against the detenu when he was already in custody in pursuance of FIR 70/2020 in which no bail has been granted. In absence of any compelling reasons, the order of detention cannot sustain the test of law.” (Para 39)

The court thus quashed the detention order of March 2022 and Peerzada was ordered to be released forthwith.

The complete judgement may be read here:

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The High Court of Jammu & Kashmir and Ladakh dismissed the petition against preventive detention of a person who had 9 First Information Reports (FIRs) against him. The single-judge bench of Justice Tashi Rabstan held that the aim of preventive detention is to stop the illegal activities of an individual which otherwise cannot be stopped.

Background

The petitioner, Babbar Khan was placed under preventive detention under the Public Safety Act (PSA). It was contended on behalf of the petitioner that it was not mentioned in the detention order that he was already in custody at the time of passing the order. Further, he had made a representation against his detention but the fate of the same was not communicated to him. Also, the allegation with regard to the association of petitioner, as alleged in the grounds of detention, as well as the status of FIRs, which have been made basis for issuing the detention order, have not been disclosed; neither was he supplied with the material documents relied upon when passing the detention order.

The respondents averred that the aim of preventive detention is to stop the illegal activities of an individual which otherwise cannot be stopped when such an individual creates havoc in the society which leads to public disorder, peace, stability and in certain cases also raises alarm bells regarding the nation’s unity and integrity. It was further contended that the petitioner was a threat to the public order, peace and stability in the society.

Court’s findings

The court held that the aim of preventive detention is to save the society from activities that are likely to deprive a large number of people of their right to life and personal liberty, saying:

“In such a case it would be dangerous for the people at large, to wait and watch as by the time ordinary law is set into motion, the person having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property. It is, for that reason, necessary to take preventive measures and prevent the person bent upon to perpetrate mischief from translating his ideas into action. Article 22(5) of the Constitution of India, therefore, leaves scope for enactment of preventive detention law.”

The court also quoted Sophocles as “Law can never be enforced unless fear supports them.” The court then went on to state, “It has to be kept in mind that law is antagonistic to any type of disarray. It is completely intolerant of anarchy. If anyone flouts law, he has to face the ire of law, contingent on the concept of proportionality that the law recognizes.”

“Acts or activities of individual or a group of individuals, prejudicial to the security of the State, have magnitude of across-the-board disfigurement of societies. No court should tune out such activities, being won over by passion of mercy. It is the obligation of the court to constantly remind itself the right of society is never maltreated or marginalized by the doings an individual or set of individuals propagate and carry out,” the court added.

The court further held that nine FIRs lodged against the petitioner between 2015 and 2021, made the basis for preventive detention under PSA. The court observed that the petitioner seems to be a hard core criminal and has become a terror figure among the people of the area, given how nine FIRs came to be registered against him. The offences in the 9 FIRs included assault, theft, kidnapping, extortion and certain offences under the Arms Act. He was previously also booked under PSA in 2018.

The court cited The Secretary to Government, Public (Law and Order-F) and another v. Nabila and another (2015) 12 SCC 127 to observe that, “In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.” The court also cited many judgements to observe that one act can suffice to satisfy preventive detention.

The court thus dismissed the habeas corpus petition and held that the petitioner instead of mending his ways has continuously been indulging in criminal activities and has not shown any respect for the law of the land. The court also held that his activities are those of a hardcore criminal and habitually indulging in violence.

The complete judgement may be read here:

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A plea has been filed before Jammu and Kashmir High Court challenging the constitutional validity of Section 18 of the Public Safety Act, 1978 (PSA). Section 18 of the Act prescribes maximum period of detention after the Advisory board has confirmed detention of the detainee. It provides that a person, acting in a manner prejudicial to the maintenance of public order, may be detained for up to twelve months and a person, acting in a manner prejudicial to the security of the State may be detained for up to two years.

The petition filed by Zulker Nain Sheikh & Associates on behalf of Petitioner-Advocate Mustafa MH was heard by a division bench comprising Justices Dhiraj Singh Thakur and Javed Iqbal Wani which issued notices to the administration. The notice issued by the bench was waived by Deputy Advocate General Aijaz Lone, and the court directed that reply be filed within 4 weeks and listed the matter for April 5, 2021.

It has been contended that section 18 is violative of Article 22 (7) of the Indian Constitution which provides that the maximum period of preventive detention shall not exceed three months, without obtaining the opinion of an Advisory Board.

The petitioner states that after the abrogation of Article 370 in August 2019 and with the passing of the J&K Reorganization Act, 2019 many laws of the Centre including Article 22 (7) of the Constitution have become applicable to Jammu and Kashmir. “Due to the applicability of Article 22 (7) now to the Union Territory of Jammu and Kashmir, Section 18 of the Jammu and Kashmir Public Safety Act shall be violative of Article 22 of the Constitution of India,” states the plea.

The plea states that the National Security Act (NSA) has also become applicable to the UT and hence it is now in direct conflict with PSA since NSA proscribes maximum detention of 1 year while PSA provides for maximum detention of 2 years. The plea states, “Since the maximum Punishment for the Preventive Detention as per Article 22 (7) of the Constitution shall be decided by the Parliament and since further the National Security Act of 1980 is the law made by the Parliament, the maximum punishment as decided by the National Security Act should be taken as the position with regard to the Maximum Punishment in Preventive Detention.”

The petition prays that the court declares section 18 of PSA as null and void being ultra vires the Constitution of India.

The order may be read here:

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In a response to a question raised by MP Ripun Bora and MP Priyanka Chaturvedi in Rajya Sabha, the Ministry of Home Affairs responded that out of 613 persons detained since August 1, 2019 under the Public Safety Act (PSA), 430 have been released based on regular review and ground situation. The question asked was how many political and civil society activists, public figures and journalists were detained or put under house arrest under PSA and how many were released ever since.

The Ministry responded that in view of the constitutional changes effected by the Parliament with regards to the erstwhile State of Jammu and Kashmir in August 2019, various measures were taken in the interest of security and public order which included preventive detention of certain persons. these included separatists, over ground

workers, stone pelters etc. who were detained. The Ministry states that no person is under house arrest currently.

When a similar question was raised during 2020’s monsoon session, the  Ministry had said that as of September 11, there were 223 under detention. Going by the current figures, there are still 183 persons under detention in the UT.

In February last year prominent political figures of J&K, Mehbooba Mufti and Omar Abdullah were detained under PSA. Mufti, former Chief Minister and leader of People’s Democratic Party (PDP) was released in October 2020 while National conference leader Omar’s PSA detention was revoked in March 2020; although he was placed under regular detention since August 2019.

Omar Abdullah’s father, Farooq Abdullah was also detained under PSA in September 2019 and was released in March 2020.

About PSA

The Act was enacted by the Sheikh Abdullah led government in 1978 and has since been a subject of contention. A report published by Amnesty International states that in a written reply to the Legislative Assembly of Jammu and Kashmir in January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2,400 PSA detention orders were passed, of which about 58% were quashed by courts.

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 detenu is also not permitted to engage a legal representation before the Advisory Board. The Act provides that the detenu be informed about the grounds of detention at the earliest, within 5 days or maximum 10 days of date of detention, but it also provides that reasons which are “against public interest” may not be disclosed. Even the report of the Advisory Board is kept confidential and not disclosed to the detenu, except the part where the opinion of the Advisory board i.e. whether the order of detention is confirmed or rejected is communicated to the detenu.

The response may be read here:

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The post Over 400 detainees released under Public Safety Act in J&K: MHA appeared first on SabrangIndia.

The Ministry of Home Affairs (MHA), on September 20, while responding to a question put forth by Rahul Gandhi stated that as on September 11 there are 223 persons detained under the Public Safety Act (PSA).

About PSA

The Act was enacted by the Sheikh Abdullah led government in 1978 and has since then been a subject of contention. A report published by Amnesty International states that in a written reply to the Legislative Assembly of Jammu and Kashmir in January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2400 PSA detention orders were passed, of which about 58% were quashed by courts.

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 detenu is also not permitted to engage in legal representation before the Advisory Board. The Act provides that the detenu be informed about the grounds of detention at the earliest, within 5 days or maximum 10 days of date of detention, but it also provides that reasons which are “against public interest” may not be disclosed. Even the report of the Advisory Board is kept confidential and not disclosed to the detenu, except the part where the opinion of the Advisory board i.e. whether the order of detention is confirmed or rejected is communicated to the detenu.

Internet Blockade

Another Member of Lok Sabha, Uttam Kumar Reddy Nalamada also questioned the MHA why the internet was still restricted in J&K and what impact it had on services like healthcare, education as well as access to justice for the people.

The MHA stated that districts of Ganderbal (Kashmir Division) and Udhampur (Jammu Division) have high speed internet. It further said that “The 2G mobile internet speed is not an impediment in covid control measures including dissemination of information to the general public as well as health workers. Also, e-learning apps and education/e-learning websites of the Government of India/ Government of J&K are accessible over 2G internet for downloading e-books and other study material. Further, the restriction on high speed mobile internet services has not been an impediment in the administration of justice and the Courts have taken special measures to conduct their proceedings during the pandemic by providing video links/URLs to the lawyers and the litigants.”

The parliamentary responses may be read here.

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The post MHA: Over 200 still detained under PSA in J&K appeared first on SabrangIndia.

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:

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Kashmir reappears on the UNSC radar after 49 years!

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Illustration by Suhail Naqshbandi/ http://www.kashmirink.in
 
On October 10, 2019, The Indian Express reported that the Jammu and Kashmir government informed the J & K High Court that it has revoked the detention orders in response to habeas corpus petitions filed by 3 persons detained under the Jammu and Kashmir Public Safety Act (PSA).

What is the PSA, its genesis and intent? Why has it been called draconian? The law brought in ironically by the state’s first chief minister and premier, Shaikh Abdullah in 1978 to prevent timber smuggling (and detain smugglers in prison) allows the state to detain persons up to two years without trial. Similar to the central National Security Act (NSA ) but was enacted two years before the national law.

Conflicting reports also suggest that former chief minister of the state, Farooq Abdullah has also been booked under the Act since September 16, 2019. While the union home minister Amit Shad first claimed that Abdullah was free, the former chief minister publicly contradicted this statement.
In late August 2019, former IAS officer and founder of the Jammu & Kashmir People’s movement, Shah Faesal was detained at Delhi airport, prevented from flying abroad and slapped with the PSA. He is still under detention. Earlier in 2019, in the wake of the Pulwama “attack” in February, scores of detainees were slapped with the law and J & K governor even approved an amendment to the law to move detainees to jails outside the state. Keeping detainees away from their home and hearth further alienates populations and causes further hardships to family members and relatives.

JKLF leader, Yasin Malik and Hurriyat leaders like Masarat Alam have also been detained under PSA. Ironically, National Conference vice president and son of Dr Abdullah, Omar Abdullah had promised to appeal this controversial law if he came back to power in the state. But this assurance comes 31 years after the controversial law has been enacted.

The J & K High Court merely disposed of the petitions since the petitions did not survive post the revocation of the detention orders. While two of these petitions challenged the orders under section 8 of the Act (which means they were detained for actions prejudicial to public order or security), the third petition challenged the order under section 22 of the Act (which means the petition challenged that the government acted in good faith while making the order). There are about 250 habeas corpus petitions lodged with the J & K High Court presently and a majority of them are filed against detention orders under the PSA.

How does PSA work?
In the following segment we have done a brief section wise review of the Act in order to understand the implications of the Act and to understand why it has been termed as a “draconian law”.

A Review of the Jammu and Kashmir Public Safety Act (PSA)
The objective of the Act is stated as:
“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 Act is short and precise containing merely 24 sections and majority of these are imperative to “achieve the goals”under the Act. The most critical ones have been reproduced below in order to understand the kind of powers that lie with the government and its agencies without due accountability. The implications of the law and its provisions have also been analysed.
 

 
*Only relevant sub-sections have been mentioned. AccessComplete Act here.
 
Purpose of the Act and Apparent Intention of the Legislature
The Act was enacted by the Sheikh Abdullah lead government in 1978 and has, since then been a subject of contention. A report published by Amnesty International states that in a written reply to the Legislative Assembly of Jammu and Kashmir in January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2400 PSA detention orders were passed, of which about 58% were quashed by courts.

There are several inferences that can be made about the intention of the legislature in passing the law and the kind of powers granted to the government. 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.

The detenu is also not permitted to engage a legal representation before the Advisory Board. The Act provides that the detenu be informed about the grounds of detention at the earliest, within 5 days or maximum 10 days of date of detention, but it also provides that reasons which are “against public interest” may not be disclosed. This gives the government an opportunity to state all grounds to be against public interest thus giving the detenu no defence in front of the Advisory Board.

Even the report of the Advisory Board is kept confidential and not disclosed to the detenu, except the part where the opinion of the Advisory board i.e. whether the order of detention is confirmed or rejected is communicated to the detenu.
 
The Law in action
The government has unabashedly used the PSA to curb activities of many prominent personalities at various occasions in the past. The Hindu reported that in August this year, former IAS officer and founder of Jammu & Kashmir People’s movement Shah Faesal was stopped from flying out of the country from the Delhi Airport and sent back to Srinagar, where he was detained under the PSA. In the wake of the Pulwama attack, scores of detainees were slapped with this law, and J&K Governor Satya Pal Malik had approved an amendment to move detainees to jails outside the State.

The Scroll recently reported that the J & K government had been acting in contravention of the PSA by detaining boys under the age of 18. As per the 2012 amendment of the Act, “person” shall not include a citizen of India who has not attained the age of eighteen years for being detained under clauses (a) and (a-1) of section 8. Yet, such detentions have taken place in the Valley ever since its lockdown imposed by the Central government. Despite of such actions of the government, which warranted quashing of the detention order of minors, the High Court only ordered a probe.

It is evident from the review of the Act as well as real incidents that the law has given the J & K government unprecedented powers of preventive detention of individuals thus allowing capricious behaviour in execution and institution of orders. Many a times in the past political parties have promised to repeal the Act if voted to power but none have accomplished the same.

As one reads section after section of the Act, it becomes evident that the intention of the legislature in formulating this law was to give unbridled powers to the state government for detention of any person under the guise of maintenance of public order and acting in interest of national security, both of which have myriad interpretations; thus leaving the detenu with no recourse to legal remedy for a considerable amount of time.

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In a written reply to the Legislative Assembly of Jammu and Kashmir in January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2,400 were detained the Public Security Act (PSA), of which about 58% were quashed by courts. The Chief Minister stated in the Assembly in January 2018 that 525 people had been detained under the PSA in 2016, and 201 in 2017.

In a new report on PSA, Amnesty International India has said, “Government statistics are often inconsistent. According to information obtained through Right to Information (RTI) applications, over 1,000 people were detained under the PSA between March 2016 and August 2017.”

The report follows two earlier reports – first in 2011, titled ‘A Lawless Law’ on administrative detention under the PSA, documenting the various ways in which the use of the PSA violated international human rights law, and second in 2012, titled ‘Still a Lawless Law’, which found that concerns with the PSA and its application remain unchanged.

The new report, which Amnesty has called “briefing” revisits the PSA in its 42nd year of existence, to claim how this ‘lawless law’ is enabling violations of both Indian and international law in Jammu and Kashmir, thereby contributing to inflaming tensions between residents and state authorities.

Even as underlining that it takes “no position on the guilt or innocence of those alleged to have committed human rights abuses or recognizably criminal offences”, Amnesty believes, “However, everyone must be able to enjoy the full range of human rights guaranteed under Indian and international law. By using the PSA to incarcerate suspects without charge or trial, J&K authorities have not only gravely violated their human rights but also failed in their duty to charge and try such individuals and to punish them if found guilty in a fair trial.”

Significantly, the report doesn’t just blame the authorities, but also talks of the “failures of the judiciary”.  Excerpts:

The only feasible legal avenue open to families of PSA detainees is to file a habeas corpus petition before the J&K High Court. India’s higher judiciary is meant to act as a custodian of the Constitution of India and the rights it guarantees. The High Court has played a key role in curbing misuse of the PSA, as is evident from the cases mentioned earlier.

Between March 2016 and July 2017, the Court quashed over 80% of all detention orders on various grounds. However, the High Court has also failed to adequately defend human rights principles enshrined in the Constitution of India and international human rights law and standards. The Court has been remiss in some specific ways:

– Ignoring illegal detention: In many of the cases analyzed for this report, detainees complained of being held in illegal detention without any basis, often prior to having a PSA detention order issued against them. In some cases, minors have been illegally detained. Despite having these allegations brought to its notice, the High Court has not ordered investigations into a single instance of alleged illegal detention. In many cases, people have been detained illegally after their detention orders have been quashed by the High Court, or they have been ordered to be released on bail. Such detention amounts to open defiance of court orders. Yet the High Court has not intervened to secure the liberty of detainees.

– Not holding detaining authorities accountable: The High Court has quashed many cases of PSA detention when executive authorities have failed to show due diligence in issuing detention orders. In several cases, it has quashed successive detention orders issued against the same individual. Yet the Court has rarely held police officials or executive detaining authorities accountable for their failures, even when it has pointed them out.

Officials already protected from prosecution under immunity provisions in the PSA are further emboldened by such reluctance from the High Court. The higher judiciary in India has vast constitutional powers and courts are often known to enforce their decisions through fines, strictures and other penalties. Yet the J&K High Court has appeared hesitant to take such measures.

– Not awarding compensation: The Supreme Court of India has awarded compensation in the past in cases of human rights violations, including illegal detentions. Most writ petitions filed in cases of PSA detention before the High Court raise the issue of compensation, and the Court sometimes mentions these requests, yet never acts on them.

As advocate Parvez Imroz says:

“Why is the police so insensitive to the judiciary’s orders? The reason is that the courts have failed to assert themselves. I do not have a single case in my knowledge where the detaining authorities have been questioned for passing the illegal orders, for example passing the detention orders against the minors or invalid persons. Or people who are remotely connected with the violence or with any political activity. Not a single case is there where the courts have ordered compensation to be paid to the detenues, though we have lot of cases in the Supreme Court.

“The procedural safeguards are being violated by the detaining authorities because there is no accountability…It is not only about the impunity of the armed forces here, which is much talked about. There is also impunity of the bureaucracy… The courts have completely caved in. Judicial impunity has emboldened the executive to pass the orders repeatedly.”

The apparent reluctance of the High Court to go beyond examining procedural issues, and deal with substantive protection of the rights of PSA detainees, has created an odd equilibrium in Jammu and Kashmir, where authorities flout the limited safeguards of the PSA with impunity, the Court quashes their orders, and authorities then issue new orders, for the cycle to start again. Authorities do not face any penalties for their actions, and the Court’s quashing of orders ensures that a façade of the rule of law is maintained.

The costs of this equilibrium are borne, then, by PSA detainees, whose rights continue to be routinely violated.

Courtesy: Counter View

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In a statement endorsed by 172 individuals and 14 organisations, attention has been called to the several issues including the gagging of media, mangling use of pellet guns, intense militarisation, draconian laws like Public safety Act (PSA) and illegal detentions – intending to muzzle the human rights voices from the valley.

This comes against the backdrop of the longest curfew imposed by the government in the valley, which has resulted in the unrest, claiming 100 lives and injuring thousands.

The statement puts forth several demands in order to put an end to the crisis,  including unfettered access to United Nations Human Rights Commission, revoking of media bans and draconian laws, demilitarisation of Kashmir and exploring possible solutions like complete autonomy or plebiscite.  

The statement has been endorsed by Anand Patwardhan, Medha Patkar, Meena Kandaswamy, Harsh Mander, Paranjoy Guha Thakurta, Admiral Ramdas, Zakia Soman, Anand Teltumbde, Teesta Setalvad and Javed Anand among others.
 
Following is the full text of the statement.

We, the undersigned, are dismayed over the ongoing crisis in Kashmir. We have watched in horror and shock the repetitive cycle of state aggression leading to violence, deteriorating state of civil liberties, violation of fundamental rights and ever escalating loss of human life and dignity in Kashmir. In the last 80 days the death toll has reached 82 (as on September 19, 2016), more than 10000 civilians have been injured, thousands arrested as on September 6, 2016. Heavy use of pellet guns as ‘non-lethal’ weapons to control and silence the protests has left hundreds severely injured and blinded.
 
The immediate response of the Indian state to the recent uprising in Kashmir was the imposition of curfew, which is continuing till date. A media gag where newspaper offices were raided, copies confiscated and editors threatened with dire consequences, accompanied it. Journalists reporting the situation have been intimidated and threatened with violence by those supposedly responsible for protecting them. Most recently the government banned the publication of Kashmir Reader, a daily newspaper published from Srinagar.
 
Pursuant to this, a complete communication blockade was imposed and Internet services were cut down. Even voices outside Kashmir that spoke of the ongoing failure of state were targeted on social media, their posts deleted and accounts blocked. The means of communication and information flow from and into Kashmir are severely disrupted. Accompanying the communication blockade is an economic blockade in which the supply of food, medicines and other basic necessities are also being obstructed, standing crops being burnt and orchards damaged.
 
It is unconscionable on the part of the Indian state to thus exacerbate the situation by choking the lifeline of people in Kashmir.
 
As the pillars of a modern democracy are wrecked with the media gag, the abuse of the impunity accorded to the law enforcement agencies is bound to escalate. There have been instances of harassment, abuse and baseless arrests of Kashmiris working and studying, not only in Kashmir but also in different parts of India, for having voiced their political views.
 
A blockade on the channels of non-violent protest by the arrests of human rights defenders, legal activists and even volunteers supplying aid in hospitals on baseless grounds has resulted in the creation of spaces for violent protests. The wanton use of force along with the lack of accountability has contributed immensely to the crisis prevailing in Kashmir.
 
Laws such as Public Safety Act (PSA), Armed Forces (Special Powers) Act (AFSPA), Disturbed Areas Act (DAA) etc., are draconian and are not conducive to contributing to a solution. Irrespective of what the situation is, whether we agree with what the Kashmiris are demanding or not, there is no law in India which allows the Indian armed forces to use their position to ransack people’s houses, decimate their food grains, crops and livestock. Intense militarization of the valley has left deep scars on the social, economic and psychological well being of every life in Kashmir.
 
It is disturbing to witness the Indian media pumping up jingoistic fervor in the minds of people in India. The propagation and glorification of state aggression and war mongering by the government, media and almost every political party has led to a lethal form of pro-state fanaticism. The success of the state machinery in realizing this propaganda also highlights the failure of the Indian civil society.
 
We therefore call on all readers and human rights organisations to unequivocally condemn the siege of Kashmir.
 
The situation in India is increasingly becoming claustrophobic, making it difficult to have any political discussion on Kashmir. Voicing any opinion divergent from the popular ‘pro-state’ narrative is now a cause for slapping charges of sedition. In such an environment even a peaceful non-violent discussion to understand the nature of problems that Kashmir faces becomes impossible. Without such understanding any solution proposed would only be a repetition of the cycles seen over the last 70 years, which have not led to any tangible solutions. We urge the government to allow an open discussion so as to facilitate the understanding the legitimate demands and concerns that the people of Kashmir have been raising over the course of last 70 years.
 
We believe that national integration at the cost of life and dignity of our own citizens would not amount to integration but colonialism. The political crisis in Kashmir cannot be resolved by being oblivious to the problem at the heart of the conflict, which is the demand for freedom. Any attempt to resolve the issue is bound to fail unless the state accepts the Kashmir conflict is a ‘political issue’ and not merely one pertaining to territory. The government must acknowledge Kashmiris as primary stakeholders in the dispute and consult them rather than considering it as a bilateral issue between India and Pakistan.
 
Whatever the stand of the Government of India on the demand of Kashmiri people for independence, it is imperative to create an environment of understanding and openness and initiate a purposeful and sincere dialogue with all the stakeholders for an amicable settlement.
 
We therefore urge the government to:
 

1. Immediately vacate the curfew and stop violence against civilians in Kashmir.
2. Open channels for political dialogue in consultation with all stakeholders and explore every possible solution including – autonomy, pre-1953 position and even plebiscite. 
3. Stop the crackdown on media and lift the ban on Kashmir Reader.
4. Immediately drop all charges against the activists, human rights defenders, civilians booked under the PSA and release them. 
5. Grant unfettered access to United Nations Human Rights Commission (UNHRC) to investigate allegations of Human Rights violations.
6. Work forcefully to demilitarize both sides of the Line of Control between India and Pakistan. Further, to demilitarize all of Kashmir and immediately revoke impunity laws such as the AFSPA, PSA, and DAA etc. 
7. Create credible mechanisms for accountability and justice, (such as an international criminal tribunal), for human rights abuses in Kashmir over the past three decades, including extrajudicial killings, torture, sexual and gendered violence, enforced disappearances and unknown and mass graves.

 

 Full list of the signatories can be viewed here.

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