While AFSPA’s repeal requires agreement with the Government of India, repealing the PSA is entirely within the remit of J&K’s political leadership
The Government of Jammu and Kashmir must repeal the Public Safety Act (PSA). There is sufficient evidence to indicate that this law is not good for safety, it is not good for the public and, it is not good for Jammu and Kashmir in the 21st century. If the Government is committed to improving the lives of people and creating an environment of just and dignified peace, it must revoke laws that encroach on the fundamental rights and freedoms of people.
As the Chief Minister noted recently in the State legislature, the Government introduced the PSA in 1978 to act as a deterrent against timber smuggling, much before militancy reared its head in the State. Mr. Abdullah further stated that while there were no plans to scrap the PSA, the Government would not allow the law to be misused. While the CM may be well intentioned, two things are clear. First, the PSA has singularly failed to curb timber smuggling and, second, the PSA’s history is replete with proven cases of abuse and yet to be investigated allegations of abuse. Human rights organizations and political and social commentators have repeatedly and over many years asked for the repeal of this law. In 2012, the Government amended the PSA to improve it. Despite some improvements, the PSA remains fundamentally flawed. For a State brutalized by violence, especially Kashmir Valley, there can be no forward movement unless we abolish laws that create hurdles for the achievement of a dignified life. In this context, laws such as AFSPA and the PSA are at the centre of debate. But, while AFSPA’s repeal requires agreement with the Government of India, repealing the PSA is entirely within the remit of J&K’s political leadership.
For those not familiar with the PSA, it has truly been a law of impunity and, even after amendments in 2011, it remains an unacceptable law. In a detailed 2011 report, Amnesty International, a reputable human rights organization, came to the conclusion that “the PSA violates India’s international human rights legal obligations”. The report also inferred that administrative detention “under the PSA was used in J&K to detain individuals for years at a time, without trial, depriving them of human rights protections otherwise applicable in Indian law”. According to the report, the Government carried out 8,000-20,000 administrative detention during two decades of militancy. A subsequent Amnesty report quoted a senior police officer of the J&K Police as having admitted that more than 15,000 people had been detained under the PSA in the last two decades. These were not simple arrests but detentions devoid of basic human rights of detainees.
In response to pressure from various quarters, the current Government amended the PSA to make it less draconian. In a sign of progress, the PSA prohibits detention of minors (below 18 years). The amended PSA also stipulates that within 10 days of detention, a detainee has the right to know the cause of the arrest. The Government reduced the maximum detention period under the PSA from two years to six months in cases where “security of the state” was concerned. In cases of a threat to “public order”, the maximum detention period is now set at 3 months compared to the previous 12 months. A few administrative changes linked to the PSA sought to improve the law.
While making the PSA “less draconian” is a welcome step, the amendments were not a “remarkable achievement” as the then Law and Parliamentary Affairs Minister Mr. Ali Muhammad Sagar claimed. In fact, the J&K Government’s ambitions did not even match some of the recommendations of the Group of Interlocutors set up by the Government of India. The Interlocutors recommended that “the Act’s sweeping powers make it open to misuse and [it] should be amended accordingly”. The Interlocutors recommended, among other things, that the maximum detention period should be 3 months even for cases related to state security. But, beyond these types of recommendations, the fundamental problems of the PSA remain—the government retains far more power to curtail freedoms by defining broad terms such as state security and public order as being punishable through administrative detention. A system of “rolling detentions” can be used to detain people without trial for years. In its current avatar, the PSA still remains what Amnesty calls a “lawless law”.
With debate raging over the continued relevance of the Armed Forces Special Powers Act in J&K, the PSA has received less attention than it deserves. In some ways, the PSA has encroached on personal freedoms with impunity similar to that of AFSPA. But, as citizens of J&K, we must raise a simple point. If it is the political leadership’s belief that AFSPA should be wholly or partially removed from the State because its continuation is unnecessary and contrary to public interest, then why can the same not apply to the PSA. The Chief Minister, speaking on the floor of the legislative assembly, sought to defend the PSA by almost delinking it from militancy. He stated correctly that the PSA was adopted in 1978, much before militancy started in J&K and it was primarily brought in to combat timber smuggling. Using the Chief Minister’s logic, the PSA detentions should have mostly caught timber smugglers. If so, the Government must reveal the number of administrative detentions in J&K since the inception of the law and the causes for such detentions. It is unlikely that timber smuggling is the main cause cited for PSA detentions in at least the last two decades.
The broader point is that if we want J&K to move forward and emerge out of our prolonged period of darkness, we must ensure that people start feeling that they are in control of their lives within the ambit of democratic rule of law. The State must assure respect for citizens and address the genuine grievances of the people. A very good beginning in this direction could involve improving the State’s governing philosophy. We must make the system answerable to the people and not the other way around. There are sufficient protections in existing laws for both the general public and public officials who are discharging their duties with care and within the confines of the due process of the law. Laws such as AFSPA and PSA create a sense that some citizens are above the law. Democracies cannot suspend laws for some citizens (notably the police and armed forces) in order to suspend the rights of others (notably the general population). Indeed, in 1994, the Supreme Court of India in Joginder Kumar vs. State of UP has established clear safeguards for the protection of arrested persons. In this judgment, Chief Justice M.N. Venkatachaliah observed: “No arrest can be made because it is lawful to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self esteem of a person.” These sage words, written in the context of the Constitution of India’s guarantee of personal liberty under Article 21, are a powerful indictment of laws such as the PSA. Can anyone in J&K make a case that detentions under the PSA are even remotely in line with the Supreme Court’s verdict or import of Justice Venkatachaliah’s invaluable words? I think not.
There are sufficient grounds, both legal and humanitarian, for the repeal of the PSA. Importantly, our political leaders have the final say in the case of the PSA. They can repeal it and create a fresh momentum for a better life for the people of J&K. The next step could be to create momentum for a rational decision on the revocation of AFSPA. If our political leaders fail to do what is so clearly in the public interest, then the electorate must hold them accountable at the appropriate time.
(Salman Anees Soz is a political and social activist based in Srinagar)