When the Jammu and Kashmir Public Safety Act (PSA) was passed in the State Legislature in April 1978, many in the Opposition either ignored it or offered some feeble resistance. But the then Chief Minister Sheikh Mohammed Abdullah was fiercely confronted by the then Janata Party MLA, Abdul Gani Lone. Lone had debunked Abdullah’s assertion that the ‘draconian law’ would be invoked only against the timber smugglers.
Forty-one-years later, the government of the Janata Party’s descendant, the BJP, is ruling at the Centre, imposing President’s Rule in Jammu and Kashmir, with the Governor’s administration justifying on Monday, 16 September, that it had detained Abdullah’s successor and son — Farooq Abdullah — under the PSA.
Eighty-three-year-old Farooq has been J&K’s CM during 1982-84, 1987-90 and 1996-2002. Several times he has served as a member of the Indian Parliament, in the Lok Sabha as well as Rajya Sabha — while also functioning (for a term) as a Union Cabinet minister.
First Time in J&K that an Ex-CM is being Held Under PSA
Even as Farooq has not been described as a “threat to security and sovereignty of India”, and the main ‘justification’ of his detention in the PSA order is the State’s ‘apprehension’ that his ‘activities’ could disturb public order, he has been confined under the same law that has been slapped on scores of separatist leaders, lawyers and businessmen in August, and hundreds of militants, stone-pelters and separatists in the past.
Interestingly, this time around, PSA has not been invoked for many of the top separatist leaders — Syed Ali Shah Geelani, Mirwaiz Umar Farooq, Maulvi Abbas Ansari, Aga Syed Hassan, Bilal Gani Lone, Prof. Abdul Gani Bhat — who are simply under ‘house arrest’.
If well-placed sources at the Centre are to be believed, the decision to detain a person of Farooq’s stature under PSA, was the sequel to the Tamil Nadu politician Vaiko’s petition seeking reasons and grounds of the National Conference (NC) patron’s confinement at his home in Srinagar since 5 August.
Apparently, the government had to ‘come up with a justification’ for the unprecedented detention of J&K’s tallest mainstream politician.
Farooq was formally detained at his home on 6 August, within hours of his emotive interview to NDTV, in which he said that India had ‘ditched’ the Kashmiris and the mainstream leaders who wanted J&K's integration with this country. His daughter, who had driven him to the media centre at Hotel Portico behind UNMIGIP Srinagar headquarters — in violation of security guidelines — was barred from meeting him. Thereafter, other visitors and family members were also turned away.
Farooq Abdullah was detained under Section 107 of the CrPC.
Farooq’s daughter and son-in-law only got to meet him after they got an order from JKHC. Medicines had also been provided to Farooq during detainment. Thereafter, National Conference MPs, Hasnain Masoodi and Akbar Lone, too met Farooq after getting a JKHC order in a separate petition.
Petitions Could Be Withdrawn Post PSA ‘Threat’
According to highly-placed sources, it had been informally communicated to the ex-IAS officer and politician Shah Faesal, who had been taken into custody at the Delhi airport — when he was flying to the US via Istanbul — that he could be detained under PSA if he pitched hard for his petition in the Delhi High Court. Faesal thus silently withdrew his petition.
A former law secretary told The Quint how one MLA from the Opposition, circa 2010, brought in an amendment seeking the repeal of the PSA’s Section 10.
According to a provision, the courts had no power to quash a PSA detention order even if none of the five stipulated grounds were relevant. Omar Abdullah’s NC-Congress coalition defeated the amendment, saying that it would be a ‘boon’ for terrorists and anti-national elements. Subsequently, section 10(A) was incorporated. It says that courts would uphold the detention even if only one of the five grounds was valid.
Even as CJI Ranjan Gogoi awaits an explanation from the Chief Justice of J&K High Court to learn whether the petitioners had any difficulty in approaching the courts in Srinagar, a bunch of petitions — including that of Vaiko’s — could end after the government’s declaration that Farooq had been detained under the PSA.
Farooq Abdullah’s Petitions in J&K High Court
On Farooq’s behalf, two petitions — one by his daughter and son-in-law, and another jointly by Lok Sabha members Hasnain Masoodi and Mohammad Akbar Lone — had already been filed in the J&K High Court. As per an order in one petition, Farooq’s daughter was allowed to meet her father and provide him with medicines. Another order permitted Masoodi and Lone to meet their party chief.
Masoodi, a former judge of J&K High Court, and Lone, an advocate, were cautiously proceeding on the legal course, knowing well that their optics had a limit. For them, two factors were clear enough: that the habeas corpus petitions filed on behalf of the fresh PSA detainees (like senior advocates Mian Abdul Qayoom and Nazir Ahmad Ronga, and businessmen Mubeen Shah and Yasin Khan) were nowhere in sight to fetch them any relief; and, that courts had very limited powers to quash such detentions for anything other than technical grounds and procedural infirmities.
Courts’ Limited Power to Quash PSA
A former Advocate General explained to The Quint that most of the PSA orders in the past had failed only for technical deficiencies or procedural infirmities, as the domain of satisfaction lay essentially with the District Magistrate. “The powers of the courts are very much circumscribed in the PSA detentions,” he asserted.
SC and HC both have writ jurisdiction under Article 226 of the Constitution of India and Section 103 of J&K Constitution (read with Article 226).
Normally, the SC asks petitioners to approach JKHC which has "extraordinary writ jurisdiction" in habeas corpus matters. However, courts don’t have the power to re-evaluate material on grounds of detention. Satisfaction on grounds of detention in the PSA is only with the District Magistrate. PSA cases, which have been quashed in the past, fell simply on technical grounds and procedural infirmities. Yes, it has been a strategy of the State to detain people under fresh PSA orders. For example, almost 40 PSA detentions orders have been quashed for Massarat Aalam. Each time, the state slaps a fresh PSA. He continues to be in jail, since April 2015.
J&K Reorganisation Act, passed by the Parliament in August, makes it clear that the PSA would continue to remain in force in the newly-created UT. We can say that changeover to union territory status doesn't change anything insofar as PSA detentions are concerned, other than the fact that after 31 October, all habeas corpus writs will have to be filed under Article 226. To reiterate, the Jammu and Kashmir PSA 1978 shall continue to be in force.
PSA Rests on Grounds of Detention
As per the procedure, a District Superintendent of Police makes a dossier which is upheld or rejected by the District Magistrate. If the DM is satisfied with the grounds of detention, he issues the order of detention which stands subject to the approval of the state government (within 12 days).
Grounds of detention have to be communicated to the detainee within 5 to 10 days. Thereafter, the detainee can file a representation under clause 5 of Article 22 before the State Advisory Board, which rejects or upholds the same with a reference to the State Home Secretary. It is mandatory for the government to accept the Board’s recommendation. The entire procedure has to be completed within three months.
In certain cases, detainees straightaway approach the High Court, pleading that the grounds of detention were not conveyed/read out to them as per the procedure, or that a formality had not been completed within the stipulated time frame.
Even as politicians in the Opposition, and human rights activists have been calling the PSA a ‘draconian law’, the government has invariably maintained that there were “adequate checks and balances” in the legislation which, with certain changes, is a state variant of the National Security Act. Smugglers and FERA violators are booked under the same law.
In J&K, the power to detain separatists, militants and anybody seen as a ‘threat’ to public order, lies with the District Magistrate. But in the case of timber and drug smugglers, the order of detention under PSA is issued by the Divisional Commissioner.
(The writer is a Srinagar-based journalist. He can be reached @ahmedalifayyaz. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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