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Above: Muslim League members protest charging of separatist leader Masarat Alam Bhat under J&K Public Safety Act at Habba Kadal in Srinagar (file pic)/Photo: UNI

J&K Public Safety Act has divided political parties as it provides for detentions without trial. While some say it snatches the liberty of innocents, others say it is needed against subversive anti-national elements

By Pushp Saraf

Former J&K chief minister Omar Abdullah has brought into sharp focus a preventive detention law—J&K Public Safety Act (PSA)—described variously as a “draconian, despicable, lawless law” and “an important tool to fight terrorism.”

Addressing party workers in Pulwama in the south of the Valley on January 31, he said: “I assure you and through you I assure the people of Jammu and Kashmir that the day National Conference makes its government on its own, God willing in 2019, within days I will repeal the PSA. I am telling you that I will blot it out from the papers forever.” He said J&K had witnessed many “handicapped” governments in the form of coalitions. “We have seen enough of handicapped governments where we remain at the mercy of someone. Late Mufti (Muhammad Sayeed) was there (as Chief Minister) courtesy (Ghulam Nabi) Azad and Azad was CM thanks to Mufti. And I remained in power for six years because of Congress support…that is why we want a government on our own so that we will rectify certain things…Why would our youth be arrested under PSA? Why parents won’t suffer when their children are being lodged for months. Governments are meant to heal the wounds of people and to provide relief to them.”

The political message by the National Conference (NC) leader was loud and clear. He aimed at a clear majority in the next assembly polls. The import of it was not lost on his opponents who were quick to react, triggering a battle of tweets. People’s Democratic Party (PDP), the main rival of the NC, expressed amusement: “A party that conceived the idea and Acts like PSA, POTA, AFSPA to muzzle the dissent voices, rigged elections in 1987, booked elected people in jails and declared them militants are now asking for majority to revoke PSA. Illogical!” Incidentally, POTA stands for Prevention of Terrorism Act and AFSPA for the Armed Forces Special Powers Act.

Sajjad Lone of the People’s Conference (PC), a supporter of the BJP, who is desperately seeking to widen his political base by challenging both the NC and the PDP, too reacted sharply: “Omar Abdullah says will repeal PSA if NC elected with majority. This Act was introduced by Sheikh Sahib in 1975. Initially meant for timber smugglers. Was misused. From 1975 to 1989 NC was in power. NC introduced it misused it and now wants votes to repeal it.” Omar hit back: “To those of you Kashmiri leaders who are questioning @JKNC‘s PSA related commitment I have simply this to say – you should have used your friendly ties with BJP to do it earlier. Now people have a choice vote for you to keep PSA or vote @JKNC to remove it.”

Three regional outfits are fighting for the same Muslim-majority electoral turf in the Valley where the PSA is a sensitive issue. Hundreds of young persons have been detained under the law because they are perceived as a threat to peace, harmony and sovereignty of the country. Worse is the fate of those who are caught in what are described as revolving door detentions. This means that while they may be released in one PSA case, it will be followed with immediate arrest under another PSA, as a result of which their agony extends beyond the prescribed maximum period of two years in one case.

Left to the PDP, it too would want the PSA to go. Lawyer-turned-party leader Nizamuddin Bhat told India Legal: “This is a draconian law and does not fit in with the country’s democratic scheme. Such laws are always prone to misuse and at times, snatch freedom and the liberty of innocents. It overrides the judicial system as the administration usurps the role of the judiciary which actually should decide the guilt or innocence of an alleged offender.” He felt that normal laws were adequate to deal with seditious activities.

On the other hand, the BJP, which had won the majority of assembly seats from Hindu-dominated Jammu in the 2014 assembly polls, as well as the Congress justify a preventive detention law. Sunil Sethi, senior advocate and chief spokesperson of the J&K BJP, was convinced that given the present situation, no elected government in the state would be able to remove PSA without bringing in some equally effective measure. He dismissed Omar’s statement as gimmickry and said that even the Supreme Court had upheld the validity of preventive detention laws. People didn’t come forward to give evidence against militants in the normal criminal justice dispensation, necessitating a deterrent like the PSA, he asserted. Ravinder Sharma, advocate and chief spokesperson of the Pradesh Congress, said: “The issues of security in this sensitive state should not be made part of vote politics. These should be left purely to the wisdom of all stakeholders to be decided as and when felt appropriate.”

Politics apart, the bitter reality is that a law to provide for detentions without trial has always existed in one form or other and while its relevance against subversive anti-national elements and external saboteurs is recognised, there is also the charge of gross misuse by duly-constituted governments to settle political scores. Two instances of political vindictiveness stand out. Sheikh Abdullah, as the “Prime Minister” (the designation then of the popular head of J&K), was woken up from sleep in the hill resort of Gulmarg on August 9, 1953, given a  dismissal order and warrant of arrest and driven to jail along with his wife. The move was plotted by Karan Singh (then Sadar-e-Riyasat, constitutional head of the state), the Sheikh’s own deputy prime minister Bakshi Ghulam Mohammad and DP Dhar, then a junior minister. He was tried later under the so-called Kashmir Conspiracy Case.

Afterwards, it was the turn of Bakshi, who had taken over as “prime minister” following Sheikh Abdullah’s arrest, to have a bitter taste of his own medicine. He was first removed from office by Jawaharlal Nehru under the “Kamraj Plan”. Then, on September 22, 1964, he was arrested under the Defence of India Rules by his former ministerial colleague and then “prime minister” GM Sadiq who felt threatened after 36 members of the legislative assembly were reported to have signed a no-trust motion against his government. Sadiq had otherwise won kudos for having ushered in a substantially relaxed political environment in the turbulent Valley by releasing the Sheikh from his long incarceration in April 1964. He also felicitated the amendment in the J&K Constitution to rename Sadar-e-Riyasat as governor and prime minister as chief minister in 1965.

The PSA in its present form was enacted by the Sheikh Abdullah government in 1978. Timber smugglers and their harbourers, as well as foreigners and persons “residing in the area of the State under the occupation of Pakistan”, were also brought under its purview then. Indeed, the framers of the Indian Constitution too had felt compelled to retain the law after Independence. Many of them had undergone tremendous suffering under similar laws during the freedom struggle. A dispassionate interpretation could, therefore, be that preventive detention was required to check the harmful activities of those seeking to play havoc with society and the country. What needs to be ensured is that it is applied in the “rarest of rare” cases in keeping with the advice reportedly given by a three-judge bench of the Supreme Court consisting of Chief Justice JS Khehar and Justices DY Chandrachud and Sanjay Kishan Kaul in 2017 who felt that “it is a drastic measure”. Their observation was in the context of a preventive detention case in Telangana.

The 1978 Act came in handy for the authorities to strike, especially in the Valley when armed subversive elements raised their head from 1988 onwards. It was used against separatist leaders, local militants who were armed and trained by Pakistan across the Line of Control and foreign saboteurs and infiltrators.

Learning from experience, the PSA was amended from time to time. Elected governments tended to take a lenient view, for instance, by raising the minimum age of detention to 18 years and introducing a mandatory provision for giving reasons for the detention in the language of the detainee. The bureaucratic attitude under a governor’s administration was tough by acquiring powers to detain people in jails outside the state. This coupled with “revolving door detentions” added to the emotional and financial strain of families of detainees.

Human rights groups like Amnesty International want the PSA to be repealed. Few would dispute their argument that human rights should be respected. Amnesty International at the same time “acknowledges the right, indeed the duty of the state to defend and protect its population from violence” and takes “no position on the guilt or innocence of those alleged to have committed human rights abuses or recognizably criminal offences”.

Clearly, seen from the perspective of those responsible for maintaining a disciplined environment, this is a mental luxury they can ill-afford. More so, when confronted by armed violence aided and abetted by Pakistan in the name of providing “moral, political and diplomatic support” while reiterating its “unflinching loyalty with the people” of J&K.

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