Farooq and Omar Abdullah, Mehbooba Mufti, and Shah Faesal are some of the well-known names who have been detained by the state, time and again, under the Jammu and Kashmir Public Safety Act (‘PSA’). Even though these people too have faced a harrowing experience, they have still been fortunate enough to get the media attention, the resources, as well as the support to legally challenge their detentions. Unfortunately, the same cannot be said for those who are treated as children of a lesser god by the State. The same state machinery uses the PSA to detain thousands of people in Kashmir, and usually this happens without even informing them of the reason(s) for their detention. Since the detentions in the latter case receive almost no media glare, there exists little accountability, and the state gets a free pass to do as it pleases. The Indian state has been unmoved when it comes to questions of accountability connected to the usage of laws like the PSA. In June 2018, when the Office of the United Nations High Commissioner for Human Rights released a report demanding that the PSA be repealed, the External Affairs Ministry directly accused the Human Rights Commissioner of individual bias against India. There seems to have been no impact on India whatsoever of the multiple reports of arbitrary detentions and human rights violations under the PSA. Hence, the question which I will attempt to answer through this article is – why have multiple, serious human rights challenges to the PSA, mounted through the United Nations Human Rights Council (‘UNHRC’), Amnesty International, Human Rights Watch, and other international institutions, failed to make any impact on the Indian Government? Additionally I will also attempt to determine whether there exists a possible way forward.
However, before proceeding, an important caveat needs to be added here. This article’s aim is not to criticize and belittle the work done on Kashmir. It recognises the fact that any work on human rights violations in Kashmir is done under adverse conditions. For instance, in June 2018, journalist Shujaat Bukhari was killed just hours after he had posted about the UN Report on human rights violations in Kashmir. Recently, Amnesty International had to close its Indian offices because of a freeze on their bank accounts. Hence, an effort has been made to simply highlight some issues that need to be debated and discussed. Finally, the story of the PSA belongs to those who have been oppressed and violated under this law.
The PSA: A Far From Ideal Law
Although the PSA was enacted by the state of Jammu and Kashmir (‘J&K’) in 1978 with the primary purpose of curbing timber smuggling, the main reason given for its continued use is that it is essential for the security of the state and public order to have such a law. In Kashmir, the locals consider the PSA as a tool used by the state administration to “keep them out of circulation” by quelling protests and ensuring that their voice is not heard. Much has been written on why the Act should be repealed at the earliest. A.G. Noorani had once stated that if this legislation were enacted in any other part of the country, it would have been immediately struck down by the courts for being in violation of several fundamental rights, primarily Articles 14 and 21 of our Constitution. The brazenness with which this law has been used can be seen from the fact that the Government has no qualms that its statistics regarding the number of people who have been detained under the law is wholly inconsistent and incorrect. The then Chief Minister Mehbooba Mufti gave statistics of the number of people detained under the PSA from time to time. In 2018, she told the J&K Assembly that around 700 people had been detained in 2016 and 2017. However, an RTI reply revealed that this number was much higher, as over 1000 people had been detained between March 2016 and July 2017. This shows the little regard the state has for human lives in Kashmir.
It has often been stated by several human rights organizations that the PSA is in gross violation of several international human rights obligations. However, there exist two major problems with the current approach, which entails asking the Indian Government to bring the PSA in conformity with these international obligations. Firstly, in many reports on the PSA released by various organizations, a fundamental issue has been overlooked. Instead, there is an over emphasis on aspects of legality and the delay in giving reasons for the detention. Secondly, there has been a lack of research into the human rights violations which have been specifically caused by the PSA.
The Human Rights Challenge to the PSA: A Fundamental Issue Overlooked
There is a fundamental problem in the current approach of asking the state to bring the PSA in conformity with international obligations. This problem has not been acknowledged and addressed by either the UNHRC or organizations like the Amnesty International. There has been a failure to engage with the fact that India justifies preventive detention laws like the PSA by maintaining that they are in line with international human rights standards. The justification is not based on the fact that such laws might be necessary due to the prevailing socio-political conditions of Kashmir or that they are inconsistent with the ‘western conception’ of human rights standards. In fact, the defence is based on the ground that such laws are a fundamental part of the Constitution. This is clear because of threereasons. Firstly, if one has a look at the Provisional Parliamentary debates on preventive detention, the consensus was that such laws are a necessary evil, even though they may end up violating certain fundamental rights. In fact, a statement of Sardar Patel shows that the Parliament was in favour of arming the Government with preventive detention laws to deal with extraordinary circumstances. However, this statement did not explain the rationale of having such laws, when express provisions regulating the declaration of emergency already existed. This staunch defence of such laws is the reason why the 44th Amendment to the Constitution, which ensured that Articles 20 and 21 could not be suspended even during an emergency, did not touch preventive detention laws, even though the expectation was that a major overhaul of such laws would take place.
Secondly, the entire discussion on personal liberty as well as substitution of ‘due process’ with ‘except according to procedure established by law’ in Article 21 was guided by the fact that no compromise could be made on having laws on preventive detention. It is well documented that even those members of the Constituent Assembly who were strong advocates of personal liberty, shared a common sentiment that preventive detention laws are an absolute necessity. The important point thus is that laws like the PSA are intrinsically linked with our Constitution’s definition of personal liberty. To disregard the PSA as a completely arbitrary law which is in derogation of international human rights standards would be an extremely simplistic understanding of the situation. G. Austin summed it up well when he wrote, “the story of due process and liberty in the Constituent Assembly was the story of preventive detention.”
Finally, India’s defence of preventive detention before various international human rights organizations has been wholly misunderstood. It is well known that India made a reservation to Article 9 of the International Covenant on Civil and Political Rights (‘ICCPR’). The argument generally has been that a reservation to an article does not mean that it will be permitted and that any such reservation has to be compatible with the ‘object and purpose’ of the treaty in question. However, the crucial fact which is not discussed is that India’s reservation to Article 9 is more in the nature of an ‘interpretative declaration’ instead of a reservation. This would imply that Article 9 would not be applicable. Simply put, India’s interpretation is that preventive detention laws that derive their power from Article 22 of the Constitution are consistent with the standards laid down in Article 9 of the ICCPR, as there is neither any arbitrariness nor any violation of personal liberty. This same sentiment can be seen in India’s defence of such laws before the UNHRC. Here the Government has made it clear that such laws comply with the procedural requirements laid down in the ICCPR, which in turn are deeply enshrined in the Constitution of India.
Hence, the problem lies in the fact that the analysis is simplistic and focused on treating the PSA as being in violation of various human rights standards. There has been no effort to engage with the underlying issue, which is that the disagreements are more fundamental in nature. While human rights advocates focus on various ‘states of exceptions’, ‘general limitations’, arbitrariness et al, the strategy of the Government has been to legitimize the law and insist that it is in conformation with the ICCPR and other international treaties.
The standard criticism of the PSA is based on the assumption, which in many ways is a fair one, that a majority of detention laws are in violation of established human rights standards. However, the structural weakness of such human rights challenges comes to the forefront when they are unable to engage with and counter the arguments in favour of detention laws like the PSA that enjoy a certain amount of surface plausibility. In the case of India, as seen from the Constituent Assembly debates, the foundation of detention laws is deeply embedded in Part III of the Constitution.
Therefore, to remedy this, it would be crucial for the various Working Groups of the United Nations, as well as the Human Rights Committee, along with other international institutions, to engage with the detailed justifications of the state when it comes to legitimizing preventive detention laws like the PSA. Currently, such institutions restrict their analysis to Article 9 and focus on the broad aspects of legality and accountability. Issues specific to the PSA are not looked at in detail and the focus is on looking at the common denominator of arbitrariness in the PSA and other similar laws. A possible reason for this could be that even the representations made to these organizations do not exclusively focus on the PSA, but instead club it with laws like the Armed Forces (Special Powers) Act (‘AFSPA’), to show the human rights violations happening across Kashmir. Because there is an over emphasis on the ‘procedural irregularities’ of the PSA, there has been a failure to address a more fundamental issue. The aim should be to target and challenge India’s justification that legitimizes laws like the PSA. India maintains that the PSA is not in derogation from human rights standards, but instead is in strict conformity with the same. Challenging this argument would allow for better limits and accommodation principles to be laid down, which in turn might better serve the cause of human rights law.
A Secondary Issue with the Challenge and a Possible Way Forward
The second problem with the current challenge is that there is very little research into the human rights violations that are specifically caused by the PSA. Having flagged a fundamental issue in the previous section, this section will look at how the human rights challenge to the PSA can be made more dynamic in nature and focused on issues that are intrinsically linked with India’s fundamental defence of the PSA.
In June 2018, the office of the United Nations High Commissioner for Human Rights released a report (‘the Report’) which condemned the PSA and asked for its repeal. However, on going through the contents of the Report, one found that it had hardly anything to do with the human rights violations caused due to detentions under the PSA. In fact, the Report was more focussed on the general human rights violations that take place in Kashmir. There is no denying that issues like sexual violence and pellet injuries are important issues which need to be stated and for which accountability needs to demanded. However, to ‘condemn’ and ask for the repeal of the PSA without properly detailing the human rights violations that are caused due to such administrative detentions is a tall order.
In addition, there are very few follow up reports and updates that are taken out by organizations like the Human Rights Watch, Amnesty International, et al, regarding the PSA. Hence, an effort has been made to focus on threeimportant human rights violations that find little to no mention in such reports which demand accountability and a repeal of the PSA.
To begin with, international human rights standards require that detained individuals are to be kept in prisons which are close to their homes. This is an important aspect which needs to be studied in detail, because it is intrinsically linked to the right to speedy trial and access to justice. The proviso to Section 10 of the PSA ensured that the permanent residents of the state are detained in J&K only. However, the Governor of the state amended the Act to remove this proviso in 2018. The reason given by the Government was that this amendment would enable them to significantly upgrade their prison system and improve the living conditions in the state’s jails. This is sadly ironic because when people are detained outside the state, it results in serious emotional and financial toll on their families, who have to spend and travel more to see their loved ones and arrange for outside counsel. This becomes specifically problematic if one keeps in mind the turn of events in Kashmir post August 5, 2019.
Since August 5 2019, the valley has been under curfew with severe restrictions on transport, communication, and internet facilities. There are various accounts describing how relatives of detenues reach the court despite the lack of communication and transport. However, on reaching the court premises, they either find out that the person has been taken to a prison outside the state or that the lawyer who was representing the person has themself been charged under the PSA. The problem of access to justice for such PSA detenues has been aggravated due to the detention of various Bar Association Officials under the same law, resulting in a situation where a majority of the lawyers are on strike.
In September 2019, when the then Chief Justice of India, R. Gogoi, said in open court that he would personally visit the J&K High Court, the civil administration released a statement stating that the courts were “functioning normally.” The Indian Express studied around 288 cases in August 2019. In a majority of the cases, the order states that the parties could not appear due to stringent traffic restrictions. In around 40 cases, the Chief Justice herself had not received the case files. Shockingly, in three cases, even the State Human Rights Commission had failed to appear in the concerned PSA case. This shows that even within the state, there are a number of problems due to which a majority of the detenues do not have access to justice. Hence, it becomes even more important that detenues are not shifted out of the state, because in circumstances of lockdowns and curfews, it would become impossible for family members to either meet them or arrange for lawyers.
The ‘official’ figures of the Government indicate that around 4000 people were detained under the PSA post August 5, 2019. Most of them were taken to prisons in Agra. A Scroll investigation documents how many teenagers detained under this Act were taken to prisons in Srinagar and were then shifted to Agra. In the middle of a communication blackout, when senior Government officers have had to use satellite phones to communicate and pass relevant orders regarding such detenues, it has become next to impossible for the family members of these detenues to approach the courts in Uttar Pradesh or Delhi for any kind of relief.
This becomes especially problematic because the Supreme Court has constantly maintained that detentions cannot be punitive in nature. However, such detentions outside the state, facilitated by the removal of the proviso to Section 10, have aimed to increase the punitive nature of the law by putting an enormous financial and emotional burden on the families of the detenues. Even though the State administration has ordered the release of some detenues lodged in jails outside the state, it has been nothing short of a nightmare for families to bring back their loved ones in light of lockdowns and highway curfew passes not being accepted,despite them being issued by magistrates.
Unfortunately, even if one were to assume that the ideal scenario of there being no lockdowns and curfews in the valley exists, the only way of getting relief for detenues is by filing a writ of habeas corpus, a process that has its own peculiar problems in the state. Certain rules were framed by the High Court in 2010 according to which habeas corpus petitions are supposed to be heard and decided within 15 days. However, in the case of PSA detentions in Kashmir, the entire judicial process takes at least four months, with there still being no certainty with respect to either the final disposal of the matter or release of the detenues. Hence, highlighting the several procedural irregularities would not be of much use if the basic right of access to justice is not ensured.
Secondly, Article 2(3) of the ICCPR mandates that individuals should have a right to seek remedy. Section 22 of the PSA ensures that no action can be taken against any officer if it is done in good faith and in pursuance of the objectives of the Act. This has essentially resulted in a situation where there is a complete lack of accountability on part of the state authorities who have been given a free hand to detain people. However, the more important aspect which is often overlooked is that there has been an inherent failure of the J&K High Court in ensuring accountability and justice to PSA detenues who are detained without any valid reasons.
In the case of PSA detentions in Kashmir, even though the High Court routinely quashes the detention orders, there is a certain hesitation on the part of the court to ensure that its orders are followed in practice and that detenues are not taken into custody once again, as soon as their previous detention comes to an end. In fact, most of the High Court judgments quashing such detention orders end by stating that the detainee can be released as long as they are not implicated in another case. This becomes specifically problematic in case of the PSA, because repeated detentions on the same ground have been documented in several reports and studies. This study, which includes interviews of former High Court judges and members of the J&K High Court Bar, shows how there is a failure to monitor release orders as well as act on related contempt pleas.
This results in a direct violation of an important human right of every individual, which is to have a remedy against a wrong committed against them, in this case, blatant, arbitrary actions of the state. For the sake of argument, if one were to assume that the High Court’s hands are tied due to Section 22 of the PSA, even though they have vast constitutional powers to hold authorities accountable, one notices a disturbing pattern across the country when it comes to PSA detentions and the writ of habeas corpus. When the habeas corpus petition of Shah Faesal was heard by the High Court of Delhi, there were severe delays, with the judges remarking that a week or ten days would not make any difference. Similarly, when Omar Abdullah’s sister approached the Supreme Court through a writ of habeas corpus, the Apex Court casually remarked that since the aggrieved had waited for a long time to file such a petition, 15 odd days would not make any difference. Another worrying aspect is that when one looks at PSA cases before the Supreme Court on SCC Online, the Apex Court has hardly dealt with such matters. Most of the orders are unreported. The few reported ones, in which the detention order has been quashed, have no comments whatsoever on the PSA. The Court has made no effort to hold state authorities accountable and to safeguard the human right of detainees.
Another interesting yet disturbing aspect is that in high profile cases like those of political leaders like Geelani and Lone, in 1994, and in Omar Abdullah’s case in 2020, the detention orders are revoked by the Government even before the Court can rule on the merits of the case. Unfortunately, the common Kashmiri who is detained under the PSA does not have the same luxury. Therefore, holding authorities accountable and safeguarding the right to remedy is something where the Indian Judiciary has failed massively. It is clear that the courts have been indifferent while dealing with the PSA cases of detenues. However, the reasons for such indifference cannot be easily identified as the problems are much more structural in nature. While this has not been looked at in detail in this article, a suggestion to get our constitutional courts to act is to comprehensively document their inaction (which ultimately results in injustice) in such cases. This is in the hope that holding up a mirror to our courts will get them to act and safeguard some of the most basic rights of those detained under this law.
Lastly,the response of the Jammu and Kashmir administration to the coronavirus pandemic (COVID-19) can sum up how the state violates the human rights of those detained under the PSA. Both, the UN Secretary General and the Office of the United Nations High Commissioner for Human Rights, have recommended that countries should consider releasing political prisoners during this pandemic. In fact, the Apex Court took notice on its own motion and passed two orders on March 16 and 23, 2020. The Court asked the states for their responses on how they intended to deal with the COVID-19 situation in overcrowded prisons. This was followed by an order on April 13, where the Apex Court agreed that prisoners with coronavirus should not be shifted out. However, the Chief Justice in his order made it clear that the March 23rdorder would remain applicable to detention centres.
The Commonwealth Human Rights Initiative also came up with a detailed report on this with references to the 2015 Nelson Mandela Rules, which ensure that there are no human rights violations against any prisoner. Several states like Delhi and Maharashtra are making a serious effort to amend their rules and release prisoners on parole. However, a high powered committee set up by the Chief Justice of the J&K High Court, under the Chairmanship of the Jammu and Kashmir State Legal Services Authority, made it clear that the Supreme Court guidelines would not apply to those detained under the PSA. They even went to the extent of stating that no representation for the release of the detenues would be considered. The Committee simply ‘urged’ the authorities to have a re-look at the PSA cases on ‘merit’. This goes against the Apex Court’s order, as well as the very reason why a referral was made to this Committee by the Chief Justice of the J&K High Court. Recently, there have been reports on the administration releasing some detenues due to the pandemic. However, there is no clarity and transparency as to the basis for the distinction between releasing detenues and whether they are actually being sent back to their homes. In light of this, it becomes all the more important for the human rights challenges to be more dynamic in nature. Releasing reports periodically, after gaps of 5-10 years, does not help the cause, legally or otherwise. There is a need for detailed reports that are well researched on various aspects of human rights violations under the PSA.This can then be used to add pressure on the state, both legally and diplomatically, all of which could help the common Kashmiri.
To conclude, the Indian Government not only believes that the PSA is not in violation of human rights, it is also firm in its stance of not granting any relief to PSA detenues even in the middle of a pandemic. Therefore going forward, it is crucial that the human rights challenge to the PSA engages with the various defences put forward by India, which legitimizes laws like the PSA, on the grounds that they are not only perfectly legal but are also in line with established human rights standards. It is crucial to find a way out of this fundamental disagreement by carefully studying, analyzing, and challenging such rationales, as well as working on ensuring that the challenge is more specific in nature and does not just focus on the ‘outrageous.’ It is equally important that such fundamental disagreements and laws like the PSA are not simply dismissed as being clearly in violation of established standards, but instead must be looked at with seriousness as they challenge the very substance of human rights law. It is important that such challenges compare and contrast the competing conceptions, as this might result in better limitation and accommodation principles to preventive detention laws like the PSA, which might be followed by the Government and which would ultimately advance the cause of human rights law. Finally, going forward, it is important that specific human rights violations caused by PSA detentions are researched and reported, which would not only lead to greater accountability but would also help in preparing a strong ground for demanding the repeal/watering down of this draconian law.
* Atharv Gupta is a final year student at NLSIU, Bangalore. Acknowledgements: I would like to thank the editors of NLSIR for their insightful and helpful comments on the previous drafts of the article. All errors are mine.
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