Updated: Jun 22, 2020

Jammu: Pleas denied by the Jammu and Kashmir (J&K) High Court on 28 May 2020 and a Supreme Court order on 8 June 2020 seeking a reply from the J&K Government on the release of a detained former union minister during the COVID-19 pandemic are reminders of the state of emergency in Kashmir for decades.

The Jammu and Kashmir Public Safety Act (PSA), 1978, which legalises preventive detention, plays a central role in this emergency and has earned itself the name “the lawless law” for violating India’s international human rights obligations and the few safeguards within the Act. Though the Act has been widely criticised since its inception, it has recently come under fresh scrutiny for hundreds of detentions following the abrogation of Article 370 on 5 August 2019.

About 396 people were detained as of February 2020, according to the home ministry, but unofficial numbers are in the thousands. The absence of any public records of the detainees and the internet shutdown in Valley have restricted criticism of the detentions by civil society and media reportage.

Though very little information comes out of Kashmir, our survey of the provisions of the Act and its implementation, as gathered from petitions filed in the J&K High Court, sheds sufficient light on the prevalence of illegal preventive detention.

Preventive detention aims to detain a person who is likely to commit a crime. The purpose is to prevent a crime from happening as opposed to ordinary criminal law which is punitive in nature and triggered after commission of an offence.

The procedure of preventive detention, therefore, falls outside the boundaries of the criminal justice system which is based on a trial before an impartial judge. The rationale behind deviating from ordinary criminal law is the urgency and gravity of the act that has to be prevented in the larger interest of the society.

A Broadly Worded, Ambiguous Law

A law that restricts liberty based on potential future acts has to ensure that such acts are narrowly defined and with reasonable clarity so that people have sufficient notice and direction for compliance.

However, section 8 of the PSA allows for detention if the Government is satisfied that it is necessary to prevent the person from "acting in any manner prejudicial to the security of the State or the maintenance of the public order”.

While the phrase ‘security of the State’ is not defined in the PSA, the meaning of the phrase ‘prejudicial to the maintenance of public order’ is broadly worded and lacks any meaningful boundary between harmful acts of a truly serious nature, and acts that are otherwise lawful. It includes (without requiring any intention to this effect) “promoting, propagating, or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race, caste, community or region; making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise abetting the use of force where such preparation, using, or instigating, inciting, provoking or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs, or is likely to disturb public order.”

Other sub-clauses mirror the provisions laid out in penal law as it is. For instance, Section 8(3)(b)(iii) refers to acts in relation to the offence of mischief under the Ranbir Penal Code (and now, the Indian Penal Code) that are ‘likely to disturb public order’. The ambiguous standard is evident from the wide description which comprises “attempting to commit, or committing, or instigating, or inciting, provoking or otherwise abetting the commission”.

The offence of mischief is of such less gravity that the maximum sentence under the Ranbir Penal Code and the Indian Penal Code is three months, whereas under PSA the person can be detained for up to 12 months. This definition reveals the overlap between the ordinary penal law and preventive detention as the former is squarely picked and applied to the latter’s mandate with the addition of the words ‘likely to disturb public order’, thus resulting in a circular definition.

As per the law, district commissioners and district magistrates are the authorities for passing detention orders. These orders must be reported to and approved by the government within twelve days. The detaining authority is required to communicate the grounds of detention to the detained person ordinarily within five days, and within 10 days in exceptional circumstances.

However, the detaining authority is exempt from disclosing any information if it believes that such disclosure will harm public interest. The detained person has a right to make a representation to the detaining authority and to the government.

The government must refer the order to an advisory board within four weeks from the date of detention order along with the grounds of detention and representations made by the detainee, if any. The Board may, at its discretion, provide an opportunity of hearing to the detained person. The right to a lawyer is expressly barred, and the report and proceedings of the Advisory Board are confidential under the Act.

Past records show that around 16,329 people have been detained under the PSA since 1998 and over 1,000 were detained between March 2016 and August 2017. While the Advisory Board has confirmed about 99.40% of the detention orders, the High Court has quashed more than 81% of such confirmed orders.

Vague Reasons For Detentions, Farcical Amendments

A survey of High Court decisions shows that authorities routinely forget to mention the grounds of detention in the order, provide only vague grounds to the detainee, replicate the police dossier, or betray a complete non-application of mind. Since the right to make a representation is the only right that a detainee is provided, this right has no meaning when the orders passed by the detaining authority lack reasoning.

An RTI in 2018 revealed that the state government has not formulated any rules or standard operating procedures (SoPs) under the PSA. This means that no directions have been issued to the detaining authorities on the format of a detention order, or the details that must be mandatorily recorded in an order. In keeping with the opacity of the detention practice, an RTI in 2019 revealed that even records relating to the enactment of the PSA have been destroyed.

In response to an international outcry against PSA, certain amendments were brought in but some of these have been quite farcical in nature. In 2012, an Amendment reduced the period of detention but only on the ‘first instance.’ In cases of threat to ‘maintenance of public order’, it allowed for detention to be extended from three months to twelve months thereafter, and in cases of threat to the ‘security of state’, it allowed for detention to be extended from six months to three years thereafter, as applicable.

In 2018, the provision that prohibited lodging of state subjects outside J&K was deleted. The move was justified as mere compliance with the Supreme Court’s directions on overcrowding in jails. However, it does not stand in face of the disparity in the rights of detainees under the PSA and those of an undertrial in a criminal case.

This is apparent from a 2019 decision of the J&K High Court in which the court held in a case of an offence under the Arms Act that an undertrial could not be shifted outside J&K without permission of the trial court, irrespective of administrative exigency relating to overcrowding or safety.

RTI applications that sought information of detainees shifted to states such as Uttar Pradesh have been refused under Section 8(1)(g) of the Right to Information Act, 2005, which exempts “information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes.”

In 2018, one of the very few safeguards by way of independent judicial involvement was also removed by way of an Ordinance that deleted the requirement of consulting the Chief Justice of the J&K High Court before appointment of Advisory Board members.

Perhaps the only amendment that expanded rights, was the provision added in 2012 that exempted minors from the application of the Act. However, as reports show, the implementation of the amendment is still far from effective.

The Supreme Court’s Approval

The PSA finds support from Article 22 of the Indian Constitution, which specifically recognizes and provides for preventive detention. The Supreme Court has also given its stamp of approval to draconian preventive detention laws that mirror some of the provisions of the PSA. The principles on the constitutionality of preventive detention laws were established by the Supreme Court in A.K. Roy v. Union of India. In this case, a constitution bench tested the constitutionality of the National Security Act, 1980. The Court upheld vague substantive provisions on the reasoning that ambiguity is a natural aspect of legislative drafting and does not necessarily mean that the law cannot not be applied in a just manner. On the denial of legal representation, the Court interpreted Article 22 to mean that a right to such representation was not available to detainees.

In an attempt to bring some parity to the process, and offer token assistance, the Court added that the detainees could be assisted by a friend, and that the right to legal representation shall not be available to the Government as well. The Court failed to appreciate the inherent power differential and information asymmetry between state officials and a detainee. Unlike the detainee, the absence of legal representation does not disadvantage the State which enjoys benefits accruing from its routine participation and familiarity with the legal procedure.

On the right of cross examination, the Court clarified that if such a right was not provided expressly by the Parliament in the Act, it could not be read in by the Court. The Court relied on ‘common experience’ to hold that witnesses are either hesitant to come forward in cases of preventive detention or it is detrimental to public interest to reveal the sources of information. This reasoning was wholly misguided because as is the case with the PSA, the report of the Advisory Board and its proceedings are confidential under the NSA, and information detrimental to public interest can be withheld from the detainee. Then referring to Dr. Ambedkar’s words in the Constituent Assembly that reiterated the right of cross-examination in any proceeding, the Court ascribed little value to the disjuncture and concluded with saying that “[w]hatever it is, Parliament has not made any provision in the National Security Act, under which the detenu could claim the right of cross-examination and the matter must rest there.”

Endless, Revolving-Door Detentions

In addition to the rights denied by the PSA expressly, there are other practices that exploit the gaps in law. One such practice is called revolving-door detention in which a person is detained under a new order as soon as they are released after their previous order is struck down by the court.

The J&K High Court has declared this practice unlawful and struck down countless repeat orders, but as the detaining authorities are protected from any legal proceedings as long as they are acting or intending to act in “good faith”, the on-ground mechanics remain unchanged. A similar immunity provision was upheld in A.K Roy where the court included within the ambit of the immunity, even negligent acts, done without exercising care, on the reasoning that “[i]f the policy of a law is to protect honest acts, whether they are done with care or not, it cannot be said that the law is unreasonable.”

Contrast this protection with the Jammu and Kashmir Grant of Domicile Certificate (Procedure) Rules, 2020, that grants domicile status to people who are not permanent residents of J&K. As per the Rules, the failure of an issuing authority to comply with the appellate authority’s decision within just 7 days will result in deduction of Rs 50,000 from their salary as a penalty.

The role of the detaining authority is pivotal in ensuring that there is fair and cautious use of preventive detention. It is their duty to exercise application of mind and examine all the material placed by the police.

Such material "must be susceptible of the satisfaction both in law and in logic”. As the Supreme Court noted in Sadhu Roy v State of West Bengal in context of the Maintenance of Internal Security Act, 1971, “the satisfaction, though attenuated by ‘subjectivity’ must be real and rational, not random divination, must flow from an advertence to relevant factors, not be a mock recital or mechanical chant of statutorily sanctified phrases”.

The Process Is The Punishment

However, these duties are often compromised as seen in the lack of reasoning in detention orders as well as the fillings by police inspectors in defence of an impugned order in the court.

In Merugu Satyanarayana v State of Andhra Pradesh, 1982, when the counter-affidavit was filed by the sub-inspector of police as opposed to the district magistrate, the Supreme Court found it difficult to even understand “how a Sub Inspector of Police can arrogate to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the Act”. The Court expressed its fear that “if the power of preventive detention is to be conferred on an officer of the level and standing of a Sub-Inspector of Police, we would not be far from a Police State”.

These observations of the Supreme Court date back to the 1980s, but the absence of the district magistrate’s affidavit in a habeas corpus petition is a common occurrence in the J&K High Court even today. This reveals that their role is anything but a safety valve to the excessive power enjoyed by the police. At times a request for detention to the detaining authority by the police is first rejected, such as on the ground that it should be pursued under penal law, but it is later allowed without any change of circumstance by the same authority.

The Public Safety Act is a prime example of the process being the punishment. With no provision for appeal, the only respite is a habeas corpus petition that can be filed only after the order has been approved by the Board which takes around three months if the timeline stipulated in the Act is strictly adhered to.

The length of detention is more unpredictable in cases where the order is not placed before the Advisory Board at all. The disposal of a writ petition normally takes one to two years and sometimes longer if the person is caught in repeat orders following their release.

A writ petition has been filed in the Supreme Court in February 2020, challenging the constitutionality of the PSA on various grounds. The petition also seeks access to lawyers and an appropriate compensation to people who have been detained after 5 August 2019 on the basis of a ‘redundant’ law that is unconstitutional, widely misused and violative of the fundamental rights guaranteed in Article 14, 19 and 21.

This petition offers an opportunity to the Court to re-visit the holding of A.K Roy and uphold the right to a fair, just and reasonable process as guaranteed under Article 21. The Court can at last recognise and redress the various abuses that have taken place under the garb of public order and security in J&K for decades.

(Manisha Bhau studies law at the National Law University, Delhi.)