It was to check rampant timber smuggling that Jammu & Kashmir promulgated the Public Safety Act in 1978. One of its first detainees, however, was a political prisoner, Shabir Shah. His offence: “Responsible for creating subversion and danger to the maintenance of public order by organising anti-national demonstrations and protests.” More than three decades have passed since the Supreme Court quashed Shah’s detention, but the ruling by Justice E.S. Venkataramiah in that case, and at least four sets of amendments to the Act since then, the most recent in 2012, have brought little change in the manner in which the law is used. “An act may affect law and order but not public order just as an act may affect public order but not security of state,” the court had said. This year, as reported in this paper, a record 434 people have been detained under the PSA since the July 8 outbreak of unrest in the Valley. The grounds for arrest range from being “an eloquent speaker”, to “provoking youth”, “creating law and order problems”, “inciting protests”, and “acting in a manner prejudicial to the security of the state as well as the maintenance of public order”. Those held under the PSA for threatening the security of the state can be detained for a period of six months, extendable to two years; for threatening public order, the detention period is three months, extendable to a year. A person detained under the PSA is held without trial. Much has been said about the immunity provided to the armed forces under the Armed Forces Special Powers Act. The PSA has similar provisions that provide exemption from criminal, civil or any other legal proceedings “for anything done or intended to be done in good faith in pursuance of the provisions of this Act.”
Accepting the government’s argument that the PSA and a system of administrative detention is necessary in a place like J&K, where the government is up against cross-border terrorism, its seemingly random use against hundreds of individuals on identical or near-identical grounds must be accounted for. Indeed, the J&K police have been known to use the PSA to keep in jail those against whom it has no evidence to put on trial; it has also used the Act repeatedly against the same person ensuring that he is continuously behind bars.
It is as if the government believes filling the jails with protestors, and would-be protestors, is the best way to end the unrest. If that were the case, there should not have been a Kashmir problem today. Previous to this year’s record number of PSA arrests, the government notched the highest number of arrests under the Act in 2010, against stone-pelting protestors. But that proved no deterrent for this year’s protestors. Unless the government makes serious attempts to find out why Kashmiris are angry and alienated enough to become stone-pelters, and addresses those issues, the jails of Jammu & Kashmir will ever remain filled with PSA prisoners — with each new arrest diminishing a little more India’s commitment to the rule of law.