Amnesty International, India recently released a report on the misuse of the Public Safety Act (PSA) in Kashmir on June 12, 2019, titled ‘Tyranny of a lawless law: Detention without charge or trial under the J&K Public Safety Act.’ The report highlights the violation of fundamental rights provided to people. The Act allows authorities to arrest a person without any trial for six months.
Any arrested person has a right to judicial review of their detention. However, the PSA makes no such provision for ordinary judicial review. Instead, an advisory board, which, as the reports mentions, “lacks independence from the government, reviews all orders.” The board provides for no opportunity to appeal, there is a bar on legal representation for the detained person, and the Board’s report is confidential.
The report also points out how “detained persons have the right to communicate with and be represented by a counsel of their choice. However, Section 16(5) of the PSA explicitly stipulates that legal counsel cannot represent a detained person before the Advisory Board.” All individuals have the right to a remedy under international human rights law and standards, according to Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR). However, Section 22 of the PSA provides a complete bar on criminal, civil or “any other legal proceedings against any person for anything done or intended to be done in good faith in pursuance of the provisions of this Act. By protecting officials even in situations where PSA is abused, this section enables impunity.” The Armed Forces Special Powers Act (AFSPA) 1989, which is in force in Jammu and Kashmir, contains a provision which is similar to the PSA and has often been used to block accountability.
While acceding to the ICCPR, India made a reservation to Article 9 of the ICCPR which prohibits arbitrary arrest and detention, requires any deprivation of liberty to be according to law, and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts. India declared that it “shall be so applied as to be in consonance with the provisions of clauses (3) to (7) of Article 22 of the Constitution of India.” Article 22(3) weakens the protections for arrested persons that are present in Article 22(1) and 22(2) for persons subjected to administrative or “preventive” detention. The right to be produced before a magistrate within 24 hours of arrest and to consult and be represented by a lawyer of choice, which is otherwise available to persons arrested in India, is unavailable to persons placed under administrative detention.
The Amnesty report points put how “International human rights standards provide that detained persons should be ordinarily kept in prisons close to their homes.” While the PSA earlier specifically stated that detainees who are permanent residents of Jammu and Kashmir should not be lodged in jails outside the state, in August 2018, the authorities amended the Act to remove the provision.
The text of the PSA itself violates international human rights law and standards, but even the limited safeguards provided within the law are routinely ignored, and the law misused, by the authorities and the J&K police. In a written reply to the Legislative Assembly of Jammu and Kashmir on January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2400 PSA detention orders were passed, of which about 58% were quashed by courts. The CM stated in the Assembly, in January 2018, that 525 people had been detained under the PSA in 2016, and 201 in 2017.
Government statistics, however, are often inconsistent. Amnesty International obtained information through Right to Information (RTI) applications, which stated that over 1000 people were detained under the PSA between March 2016 and August 2017. The report also states that the Advisory Board almost always upholds detention orders passed by executive officials.
Through applications filed under the J&K RTI Act by two law students from the University of Kashmir, it was revealed that between April 2016 and mid-December 2017, the state government referred 1004 detention orders to the Board. Amnesty’s report says that “In a staggering 99% of these cases, the Board recommended the confirmation of the detention order. When these cases were challenged in court, though, they were frequently struck down. Between March 2016 and July 2017, 941 petitions were filed before the J&K High Court seeking quashing of detention orders. The Court quashed 764 detention orders – 81% of all orders – in this time period.”
Section 19 of the PSA states that “There shall be no bar to making of a fresh order of detention against a person on the same facts as an earlier order of detention—where continuance is not legal or has been revoked due to technical reasons.” The report goes on to talk about how the authorities frequently issue repeat detention orders on the same grounds as earlier orders, arguing that the earlier orders had been quashed on “technical grounds” even when they were quashed on substantive grounds. This then contributes to creating a “revolving-door detention” system, where detainees whose PSA orders are quashed are immediately detained again under fresh orders on identical or similar grounds. Amnesty International India found 71 cases of revolving-door detentions, where authorities had either issued a new detention order or implicated a detainee in a new FIR, to ensure that they remain in detention.
The PSA prohibits the detention of children, following an amendment to the Act in 2012. The report states how Amnesty International India has, however, “documented several instances where executive authorities have ordered the detention of minors, even when presented with evidence of their true age. In no case did the authorities appear to try to determine the age of the detainee.”
The report points out how the “informal justice system” that is the PSA also facilitates a range of other human rights violations, including the arbitrary detention of detainees in police stations before detention orders are issued. Amnesty’s report talks about how many cases begin with the person being taken “unofficially” for an investigation to a local police station and kept in custody, without any legal basis, before they are arrested under an FIR or a PSA detention order, and none of the official records reflect the period of interrogation. The duration of unlawful detention, which often entails spates of “interrogations”, ranged from two days to a month, the report mentions. Such unlawful detention violates detainees’ rights, under India’s Constitution, to be produced before a magistrate within twenty-four hours of their detention. Some of the PSA detainees whose cases were analysed in the course of the report also spoke of facing or witnessing torture or other ill-treatment, including beating, stripping and electric shocks.
The report reiterates how the “PSA’s parallel system does not just co-exist with the criminal justice system but is also used to actively infringe detainees’ fair trial rights by keeping them in detention even after courts have ordered their release on bail. Instead of appealing against the rulings granting release on bail, authorities merely use the charges against the suspect as grounds to detain them under the PSA, in effect overturning the principle of presumption of innocence.”