My worst fears about the PSA have proved true especially since the outbreak of the militancy in 1989
On 23 November 1977, Indian Express published my article entitled “Preventive Detention Revived”. Its opening paras read thus: “The Jammu & Kashmir Public Safety Ordinance 1977, is far too severe and repressive a measure to make any of the laboured arguments advanced in its defence by the State’s Chief Minister, Sheikh Mohammad Abdullah, and his Deputy Mirza M. A. Beg, at their press conference on 8 November, convincing. Neither the “peculiar” situation prevailing in the State nor the necessities of defence can justify the acquisition of unfettered power over the liberty of the citizen and the freedom of the press.
“The Ordinance replaces the Defence of India Act, 1971, an avowedly emergency measure which lapsed in September, and adds some distinctive features of its own. The definition of a “prejudicial act” is widened to include “any act which is intended or likely to prejudice the State’s relations with the Union of India or other States in the Union”. This, to say the least, is a very odd provision in the criminal law of a member of a democratic federation. A “prejudicial report” is any report or statement, “whether true or false”, which incites the commission of a “prejudicial act”.
“A person found guilty of a prejudicial act, so defined, is punishable with imprisonment which may extend up to two years. All offences under the Ordinance are non-bailable. The editor of a journal which possesses, let alone publishes, a “prejudicial report” can be required to reveal the name and address of its author. Even the DIRs did not confer this power. It cannot be mitigated by the Rules proposed to be framed, as Beg Saheb assures us, because delegated legislation cannot cure the vice in the present statute.
“The State Government is empowered to restrict the circulation within the State or prohibit importation into the State of any publication if it is satisfied that the action is necessary inter alia for preventing any activity likely to affect public order. Against such an order the only remedy which the aggrieved person has is to make a representation to the Government; an appeal from Caesar to Caesar. If the representation is rejected, he can move the High Court; on the merits but “on the ground that he was not given a reasonable opportunity of being heard.” In other words, if the State Government is careful to go through the formalities of hearing the judicial remedy is barred. Contrast this with S. 24 of the Prevention of Publication of Objectionable Matter Act, 1976 which enabled the High Court to go into the merits of executive action.
“As for the power to detain persons without trial suffice it to say that the Ordinance enables the executive, if it so chooses, to detain a person for as long as two years, without furnishing him with the grounds on which the order is made and without obtaining the opinion of the Advisory Board.
“Such a law enacted elsewhere in India would be instantly struck down by the courts as violative of the fundamental right to freedom of speech and expression (Art. 19) and to protection against arbitrary arrest and detention (Art. 22). But the Constitution (Application to Jammu & Kashmir) Order, 1954, made by the President under Art. 370, extended the fundamental rights to the State with modifications which rob Articles 19 and 22 of their worth altogether. As extended to Jammu and Kashmir, “reasonable restrictions” on the rights conferred by Art. 19 means “such restrictions as the appropriate Legislature deems reasonable”; not the courts as in the rest of the country. The Order expressly exempts State laws on preventive detention from challenge on the ground of violation of Art. 22. The Presidential Order was made for a period of five years but it has been extended repeatedly, the last time in 1974 for another five-year term.” It lasted for 25 years till 1979.
To their credit, neither Sheikh Saheb nor Beg Saheb, who became friends ever since I first met them on 16 September 1962, when they were in prison in Jammu, took offence. That was left to met amoral character, D.D.
Thakur, who created a rift between them and conspired to topple Farooq Abdullah from Chief Ministership in 1984. My worst fears about the PSA have proved true especially since the outbreak of the militancy in 1989.
Unlike Article 22 of the Indian Constitution (1950), the Constitution of J&K (1956) contains no provision for preventive detention because it contains no fundamental rights either, from which an exception – preventive detention – was necessary to carve out.
It was Sheikh Saheb’s strong desire that the fundamental rights be available to Kashmiris from Kashmir’s own Constitution. The Constituent Assembly of Jammu & Kashmir first met on 31 October 1951. On 7 November 1951, Mirza Mohammed Afzal Beg moved a resolution in the Assembly for the appointment of an Advisory Committee on Fundamental Rights and Citizenship. One of its members was – Syed Mir Qasim.
When Kashmir’s delegation led by Sheikh Saheb met Nehru in Delhi on 20 July 1952 it insisted on the State having fundamental rights in its own Constitution. Nehru disagreed. He wanted to apply Part III of India’s Constitution to J&K. The Delhi Agreement of July 1952 left it open. Nehru’s intentions were not secret even then.
He ordered Sheikh Saheb’s dismissal from office and arrest on 9 August 1953. His accomplices in the State, whose political heir still shut about in power in Srinagar, complied with his wishes. On 3 February 1954 Mir Qasim presented to J&K’s Constituent Assembly the Report of the Basic Principles Committee relating to fundamental rights and citizenship. The Drafting Committee followed suit on 11 February 1954. Four days later the rump Constituent Assembly complied. On 14 May 1954 came the President of India’s Omnibus Order under Article 370 applying to J&K provisions of India’s Constitution including Article 22 which provides for preventive detention. With one difference; the Legislative power on this subject was to vest in the State’s Legislature not the Indian Parliament. In Article 19 the words “reasonable restrictions” would mean ones which the Legislature “deems reasonable”.
This is how J&K derived power to enact the PSA. In its nearly 40 years of its operation it has wreaked havoc. Like all such laws, it is patently, manifestly and demonstrably unconstitutional. Article 21 of the Indian Constitution applies to J&K. It says “no person shall be deprived of his life or personal liberty except according to procedure established by law.” The Supreme Court has repeatedly held that the procedure must be fair and just and must conform to other fundamental rights. Article 22 carves out an exception; namely preventive detention. But the Supreme Court has also ruled that a detenu is not a convict and preventive detention is an administrative Order not a punishment for a crime (Sampat vs. State of Jammu & Kashmir AIR 1969 S.C. 1153; para 10).
Why then are detainees lodged in a prison? Section 53 of the Indian Penal Code lists six forms of “punishment”. The fourth among them is “imprisonment” (I assume that the Ranbir Penal Code has a similar provision). Without exception, every law for preventive detention empowers the Government to determine the place and the conditions for detention. Section 10 of the PSA does that. This is a devious and dishonest way to imprison political opponents without trial; a manifestly unconstitutional act.
In 1918, nearly a century ago the hated Rowlatt Report said: “No interference with liberty must be penal in character. Nothing in the nature of conviction can be admitted without trial in strict form. If in the supreme interests of the community the liberty of individuals is taken away, an asylum must be provided of a different order from a jail” (“Sedition Committee Report 1918”; p. 206). Two conditions must be noted. First, deprivation of liberty must be ordered only in the “supreme interests” of the community. Secondly, the suspect must be put in an asylum which is different “from a jail”.
The detainee is sent to prison without trial. Inquiry by an Advisory Board is a farce. Courts have not always helped. An Advisory Board comprises three persons “who are, or have been, or are qualified to be appointed as Judges of a High Court”. A lawyer of 10 years’ standing, a party hack, qualifies.
Why is preventive detention at all necessary? S. 41 of the Criminal Procedure Code empowers a police officer to arrest any person against whom “a reasonable suspicion exists” of complicity in a crime. Under S. 109 security bonds can be ordered to be executed by persons suspected to be about to commit a cognisable offence. Thus at the very first moment the mischief can be nipped in the bud. Methods used by Irish terrorists were far more deadly and sophisticated than those used by militants in Kashmir. Time and again we are told in India that (a) the country will become ungovernable if the state is deprived of the power of preventive detention and (b) “terrorism” cannot be combated save by the drastic invasions of personal liberty which Indian statutes make.
Britain’s experience in Northern Ireland exposes the utter falsity of both propositions. They provide a glaring contrast to our experience. Internment (preventive detention) started in Northern Ireland on 9 August 1971. On 5 December 1975 the Secretary of State for Northern Ireland Merlyn Rees announced that the last 73 detenus would be set free and preventive detention would be ended; after a mere four years
There is another aspect which covers every State. The 44th Constitution Amendment Act enacted during the Janata era in 1979 made it mandatory, by amending Article 22(44), that the advisory board should consist of a chairman who “shall be a serving judge” of the High Court of that State while the other members could be serving or retired judges of any High Court. It empowered the Government to notify the dates on which its provisions should come into force. The Act received the President’s assent on 30 April 1979. On 19 June 1979 certain provisions were brought into force. Some others were, likewise, brought into force by notifications on 1 August 1979 and on 5 September 1979. But to this day the amendment to Article 22 has not been brought into force. The 44th Amendment also amended Article 22(7) by deleting altogether the clause which enables detention for a period longer than three months without obtaining the opinion of the advisory board.
When the National Security Act (NSA) was challenged in the Supreme Court, it was argued that it was nothing less than a fraud on the Constitution for the executive to abuse the power of notification of dates entrusted to it by simply refusing to bring a provision enacted by Parliament into force. It is a case of nullification of the legislative will by deliberate executive inaction. The Bench was split on this. Two judges held that since more than two and a half years had passed after the Amendment was enacted – the court’s judgment was delivered on 28 December 1981 – the Government was bound in law to notify the coming into force of Amendment to Article 22. They were Justice A. C. Gupta and V.D. Tulzapurkar. Three others dissented. So, by a narrow majority, the Government’s fraud passed muster.
In truth, neither NSA nor the PSA is necessary. To repeat, Section 41 of the Cr.P.C. empowers “any police officer” to arrest, without an order from a magistrate and without a warrant, any person about whom “a reasonable suspicion exists,” of his having “been concerned” in any cognizable offence. Thus, at the decisive initial stage of nipping any trouble in the bud – be it terrorism or a communal riot – the police have ample powers of prevention under the ordinary law of the land. But it is required thereafter to put him up before a Magistrate within 24 hours (Section 57) and obtain his remand for investigation as we have noted (Section 167). It is required, in sum, to obtain proof.
The laws on preventive detention do away with this requirement of civilized jurisprudence. They confer on the men in power arbitrary powers of detention in respect of those who put them in power, the citizens. Justice Mathews of the American Supreme Court said in a classic case, a century ago, “The very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”
That “slavery” is very evident in the manner the PSA has been enforced. The vice is inherent in this barbaric law, a haiwani qanoon. Under Section 14(2) the Advisory Board can be packed by a couple of lawyers, to form a majority, who “are qualified to be appointed as Judges of the High Court” – party hacks of ten year’s waiting in the Bar room.
Section 6, on the power to prohibit the entry or circulation in the State of a newspaper or any other “document”, is unconstitutional. It violates the fundamental right to freedom of speech because it compels the press to approach the Government first – an appeal from Caesar to Caesar. It can sit on the plea for 3 weeks. He can then apply to the High Court – after the news has lost topicality. Also the Government is not bound to disclose the grounds. In contrast S. 95 of the Criminal Procedure Code binds the State Government to state “the grounds of its opinion”. The aggrieved person need not waste time by approaching the State Government. He can apply directly to the High Court to set aside the order (S.96).
The power of detention under the PSA vests in District Magistrates and Divisional Commissioners – excellent judges of danger to “the security of the State or the maintenance of Public order”.
Section 425 of the IPC defines “mischief” narrowly and prescribes a maximum imprisonment of 3 months (S. 426). The PSA makes it a ground for detention if it disturbs or “is likely to disturb public order” as if the ordinary law cannot deal with it.
The Supreme Court has ruled repeatedly that an order of detention must be quashed if the grounds are “vague, non-existent, not relevant” because this deprives the detainee to show cause against such an order or right which is his under Art. 22 of the Constitution.
In 1985 PSA was amended to insert S. 10-A which says: “where a person has been detained in pursuance of an order of detention under Section 8 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly – (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are – (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reasons whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Section 8 with reference to the remaining ground or grounds and made the order of detention; (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said Section after being satisfied as provided in that Section with reference to the remaining ground or grounds.”
This is preposterous. The “satisfaction” cannot be “deemed” to exist so as to bar judicial scrutiny. It must be established to the satisfaction of the Court. S. 10-A bars judicial review and is unconstitutional. It renders furnishing of grounds a mere formality. How can the detainee possibly show cause against grounds which are “vague”, “non-existent” or “not relevant”. Obviously the object of the amendment was to render the right to show cause illusory. This was in 1985 before the militancy erupted.
The case of the highly respected Civil libertarian Khurram Pervez illustrate fraud. Read this hilarious ground: “You have achieved a prominent position in the separatist camp under a hidden cover of being a human right activists. In the ongoing unrest, you have been found instigating and advocating the disgruntled elements to resort to illegal activities”.
The “grounds” provided to the veteran Shabir Shah are as hilarious. They are charges based on inferences; shorn of facts completely. How can a detainee challenge inferences which reside in the DM’s mind unless he is given specific facts on which they are based?
Here is another sample, A 107-page report by the Human Rights Watch entitled “Every One Lives in Fear” records “Police orders requesting the detention of Abdul Hamid Ganai and Sartaj Ahmad Ganai, copies of which were shown to us, stated in identical language that, “You are presently under police custody on remand. However, there is every apprehension that you may get yourself released on bail. Normal laws are not sufficient to deter you from your antinational activities.” Their detention was challenged successfully, but such cases are common as lawyer Riaz Ahmad points out: “When they are short of evidence, they [the police] also book them under PSA.”
Amnesty International published a Report of 82 pages, entitled “A ‘Lawless Law’” in March 2011. It is a devastating exposure of the PSA. “Amnesty International has previously called on the Government of India to reform its administrative detention system, as have other international human rights organizations and a number of UN human rights mechanisms. India has so far chosen to ignore such calls. In a meeting with Amnesty International delegates in Srinagar in May 2010, the then Additional Director General of Police (Criminal Investigation Department) of J&K asked, “What rights are you talking about? We are fighting a war – a cross border war.”
Samuel Verghese told an AI’s delegate on 20 may 2010 at Srinagar “We have to keep some people out of circulation”. A former detainee described his Advisory Board process thus: “Every 15-20 days, a team visits the prison. No prior information is given to the detainees. They are called and made to appear before the board – there is a special courtroom. No documents are given to the detainee. The team asks the name, father’s name and address and put it down into a pre-printed form. Sometimes they ask a few questions – most times they don’t. The team doesn’t tell the decision. We only know when the form is later sent to the prison. I was detained four times, but only got the letter from the board once. The other three times the guard in the jail told me verbally that my detention had been confirmed. I was nut surprised – I had no expectations of justice anyway.”
“Amnesty International was informed that in many cases, detainees refuse to file representations before the Advisory Board, as they see no hope of a proper hearing. According to Mir Shafqat Hussain, a senior lawyer taking up a number of PSA cases in Srinagar, “the Advisory Board is an eyewash. Out of 100 cases, maybe in one or two cases they may recommend revocation of the [detention] order.”
“It is widely understood amongst the legal community in Srinagar that confessions and disclosure statements made in police custody are a result of torture and other ill-treatment. This follows a pattern of torture and ill-treatment of detainees in J&K documented by Amnesty International and others throughout the recent decades of the conflict. In December 2010, a US embassy cable referring to a confidential briefing by the International Committee of the Red Cross (ICRC) to US diplomats in New Delhi in 2005 was published by Wikileaks. According to this cable, the ICRC had made a confidential assessment, based on visits to detention centres in J&K between 2002 and 2004, that there was systematic prisoner abuse in the state, and that the Government of India condoned the torture. Allegations of torture contained in numerous habeas corpus petitions studied by Amnesty International for this report reinforce concerns that torture and other ill-treatment continue to be widely practiced. References in PSA detention orders to police “breaking down suspects” after “sustained interrogation” raise alarm in this context.”
“In a recent judgment, the High Court illustrated the difficulty faced by detainees: The detenue is informed that he “always incites disaffection amongst masses and against the Government” and that he is “hell-bent to strike terror amongst masses” without being informed of the details of the attributed activities i.e. when and how did the detenue “incite disaffection amongst the masses” or was “hell-bent upon to strike terror amongst masses”. Again the detenue is informed that he is providing information regarding movement of the security force in Ramban district without telling him what, when and to whom did he transmit such information. The detenue is alleged to have allowed the militants of various Organizations to stay at his residence and to have planned with such militants to target security forces and plant IED on National Highway. The detenue is not made aware of the names and other details of the militants whom he allowed to stay at his residence and when they were allowed to stay at his residence and what installations were intended to be targeted. These are only few instances to illustrate that the grounds of detention are vague and ambiguous and bound to keep the detenue guessing about what really was intended to be conveyed by the Detaining Authority.”
Vague grounds are inevitable if there is no ground to warrant detention. The PSA legitimizes vague grounds and thus legitimizes the reign of terror. All are complicit in this – the National Conference as well as the PDP. As Aneurin Bevan said in the House of Commons to Selwyn Lloyd as soon as Prime Minister entered the House “Why should I question the monkey when I can question the organ-grinder”. The CMs of NC and PDP are puppets whose strings are pulled by the NSAs in New Delhi. The late Mufti Mohammed Sayeed told Indian Express that he regularly met Ajit Doval. It is the PSA which has ensured Geelani’s house arrest for six years. The puppets complied Kashmir languishes today under Puppet Raj. PSA is an instrument of choice the puppets use to get in the good books of New Delhi.
The East India Company Act, 1793 gave the detainee the right to cross-examine witnesses which the PSA 1978 denies him. Wahabis were in open revolt against British rule. They taught that the first duty of a Muslim was open rebellion against it. One of them Ameer Khan was arrested in 1869. He and colleagues applied for a writ of habeas corpus in the Calcutta High Court. Their counsel was T.C. Anstey, fearless and erudite. He argued that Indians had the same right to freedom as the British. He later practiced in the Bombay High Court and a road is named after him. At the end of his address to Justice Norman, he said: “If your Lordship be unable, I will not say unwilling, to contribute to this end then it will now be decided that there is no law in this country. It behoves us in that case to look well to our words; to fear the caprices of the despot of the hour to whom the Ministers of the Crown on the other side of the world have unconsciously committed the destinies of 200,000,000 of souls. If then, your Lordship’s decision be against us. I say it with grief, there will be no other remedy left to any man of spirit, whatever be his race, creed or colour except immediate departure, or open rebellion.”
His Junior Ingram said: “The Advocate-General, upon the first day, made the most extraordinary statement, which I ever heard in a Court of Justice. He denied that any Municipal Court could entertain this application. It means that the Governor-General of India claims to be above all law. Before he could make a claim of that kind on behalf of any authority, what a change must have taken place in the Advocate-General? He must have ceased to be a lawyer, and became a simple official – he must have surrendered his independence, and become a humble servant of the Crown.”