Since August 5, the Jammu and Kashmir administration has issued as many as 230 orders for detention of people across Kashmir under the draconian Public Safety Act (PSA). Of these, only three have been rejected by the PSA Advisory Board which is supposed to review these orders and confirm or reject them within six weeks.
Late Sunday night, former Jammu and Kashmir CM Farooq Abdullah was slapped with PSA and detained in his house after declaring it as subsidiary jail. The order was confirmed by the PSA Advisory Board before the Supreme Court began hearing a habeas corpus petition on Abdullah Monday.
The PSA Advisory Board is meant to act as a check and balance on the government’s use of this stringent law — it allows for detention without a formal charge and without trial for up to two years — and that’s why the judiciary was made part of its appointment exercise. The chairperson of the board could only be appointed in consultation with the Chief Justice of the Jammu and Kashmir High Court.
Ironically, one of the last decisions of the PDP-BJP government led by Mehbooba Mufti was to do away with this. In May 2018, days before her government fell, an ordinance was brought in that took the judiciary out and vested the powers with a committee of bureaucrats. The ordinance was promulgated by then Governor N N Vohra on May 22, 2018 when the Assembly was in recess.
The current three-member Advisory Board is headed by former J&K HC judge Janak Raj Kotwal. Kotwal was appointed to the post on January 30, after the State Administrative Council (SAC) got the sanction for his appointment from Governor Satya Pal Malik. The post had until then remained vacant since March 2018.
Before the ordinance was promulgated, Section 14(3) of the PSA said, “The Chairman and the other members of the Board shall be appointed by the Government in consultation with the Chief Justice of the High Court.”
Following the amendments brought in through the ordinance, the concurrence of chief justice of High Court was no more required as long as the chairman was not a sitting judge of the High Court. The concerned section now read: “The chairman and other members of the Board shall be appointed by the government on the recommendation of the Search-cum-Selection Committee consisting of the following: Chief Secretary (Chairman); Administrative Secretary, Home Department (Member); Administrative Secretary, Department of Law and Justice and Parliament (Member)…”
It said that the Chief Justice of the High Court was to be consulted only if the chairman was a sitting judge of the High Court or District or Sessions court.
That the advisory board has confirmed almost all PSA orders it has received from the J&K administration ever since Home Minister Amit Shah announced abrogation of Article 370 is in keeping with the long-standing tradition of PSA advisory boards in Kashmir.
According to data retrieved by Venkatesh Nayak and Dr Shaikh Ghulam Rasool through RTI for Commonwealth Human Rights Initiative (CHRI), between April 2016 and mid-December 2017 the State Government referred 1,004 detention orders to the Advisory Board. It confirmed 998 orders, a confirmation rate of 99.4%.
Significantly, CHRI found that in the same period, Jammu and Kashmir High Court admitted 941 pleas seeking quashing of the detention orders. Of these, 764 detention orders were quashed.
PSA has often been criticised by human rights activists as among the most abused laws in the country also earning it the moniker of the “lawless law”. Under the law, however, Advisory Boards have powers to call for detailed reasons from the district magistrate for detention of a person under PSA. The Board is supposed to examine the reasons thoroughly for a maximum period of six weeks within which it can also call for representation from the person against whom the detention order has been issued. The spirit behind the provision is clear that the administration must not make any arbitrary detentions under the PSA.
According to Amnesty International estimates there have been over 20,000 detentions under the Act since it came into force in 1978. Interestingly, many people have found it difficult to get out of jail even after High Courts have quashed detention orders as the law allows the administration to slap the person with fresh charges under PSA.
As The Indian Express reported yesterday, since the Pulwama attack on February 14 and until August 4, records show that as many as 150 habeas corpus petitions were filed in the Srinagar bench of the Jammu and Kashmir High Court against PSA orders. Of these, verdicts came in 39 cases – in almost 80%, the court quashed the detention and ordered the release of the detainee.