And Kashmir Public Safety Act-1978
By Syed Junaid Hashmi
01 May, 2007
of the most draconian laws applicable in Jammu and Kashmir, Public Safety
Act (PSA), that is being liberally used as a repressive measure to scuttle
any dissent, often also for victimising innocent youth, ironically finds
its roots in the Defence of India Act (DIA) during the British rule.
In fact, the PSA happens to be a more punitive form of the DIA that
was described by various National leaders including Mahatma Gandhi as
draconian and a black law enacted by Britishers to suppress Indian freedom
After independence, Defense
of India Act changed nomenclature in the year 1967 and is presently
known as Public Safety Act, more precisely in Jammu and Kashmir as Jammu
and Kashmir Public Safety Act-1978 with provisions and impunity almost
similar to the act of British era.
Legal luminaries and international
human rights organizations have been persistently demanding review of
this act. They say that the act falls short of the recognized norms
of justice, such as equality before law, the right of the accused of
appearance before a Magistrate within 24 hours of arrest, fair trial
in public, access to counsel, cross examination of the witnesses, appeal
against conviction, protection from being tried under retrospective
application of law and many other such provisions.
A legal expert on the condition
of anonymity said that the Act was promulgated in 1978 (amended in 1987
and 1990) in Jammu and Kashmir empowering the state government to detain
a person without trial for two years under the pretext of maintenance
of public order. He added that even the provisions of the Act, though
already unsatisfactory, have been consistently violated.
Legal experts say that PSA,
which operates in Jammu and Kashmir, differs from the act operating
in rest of the country. They maintain that Jammu and Kashmir Public
Safety Act-1978 (JKPSA-1978) was amended in the year 1990 which made
it possible for extending the operation of the act beyond the State,
enabling the State machinery to keep detainees in the jails of India,
outside the State.
They over that this provision
is strictly meant for Jammu and Kashmir. Experts opine that state government
can recommend review of Public Safety Act but the same has never been
done. They add that respective governments since 1978 have used the
law to their fullest advantage but have never sought a review of this
A senior political leader
said that for political gains, issue of PSA used to be raised repeatedly
but neither separatist nor the mainstream politicians ever bothered
to take legal recourse for seeking review of this draconian law. "Isn't
PSA as bad as AFSPA? It also prevents taking action against an individual
who acts in "Good faith", added the senior leader.
An expert in legal affairs
and senior People's Democratic Party (PDP) leader Muzaffar Hussain Beg
said, "We have been consistently saying that various provisions
of the act need revision, prisoners from within the state should not
be shifted to the jails outside the state. It has been felt that a pattern
of harassment, intimidation, and deliberate disregard for the civil
and political rights of those who are critical of the government has
emerged over a period of time which is very unfortunate," added
He maintained that under
Section 22 of the Act, any legal proceeding against officials for acts
"done in good faith" are also disallowed. "This law has
been widely used against the innocent people as well as political opponents,"
added the former deputy Chief Minister.
Another expert on legal issues,
who is also a Supreme Court lawyer said that under PSA, detainees are
not informed of the reasons of their arrest and they are kept in custody
for a much longer period of time than stipulated in the Act. "They
are not allowed to meet their relatives and counsels which is highly
unfortunate when seen in the light of the fact that our country got
independence from these acts in 1947," remarked the expert. He
emphasized that with the ouster of British Raj, these draconian laws
should have also gone.
Reports of Amnesty International
(AI) and other human rights organizations suggest that people detained
under the PSA also run a high risk of being tortured, as many are denied
access to family or lawyers for long periods. These reports also indicate
that torture is widely used in police stations and interrogation centres
in Jammu and Kashmir to extract confessions or information, to humiliate
or punish detainees, leading to dozens of reported deaths in custody.
A report of Amnesty international
maintains that in February 1998, a political activist Ghulam Ahmad Dar
was given electric shocks, had wooden rollers rolled over his thighs
and had his hands beaten with a pistol butt. "Hundreds of people
are held in preventive detention or on a range of criminal charges despite
court orders for their release. When the state anticipates that detainees
will be released on bail, it uses PSA to ensure their continued detention,"
said a senior political leader.
Amnesty International reports
say that PSA is a vaguely formulated act which allows detention for
up to two years without charge or trial on the purported presumption
that they may in the future commit acts harmful to the state. It adds
that lawyers in Jammu and Kashmir have consistently challenged specific
PSA cases in the courts, but the government has blatantly disregarded
court orders quashing detention orders or granting bail. "Such
disregard completely undermines the role of the courts to protect human
rights" maintains report of the United States department of states.
Amnesty International has
repeatedly called on the Government of Jammu and Kashmir to immediately
and unconditionally release the all the political prisoners held under
PSA. A senior counsel from Jammu said that security concerns in Jammu
and Kashmir are obviously a top priority for the government. "However,
the conflict does not justify imprisoning people who have not committed
any offence and have not used or advocated violence, this act needs
to be reviewed," added the high court lawyer.
A senior separatist leader,
Shakeel Bakshi said that many of these laws have arisen from the attempts
of the Indian ruling class to "resolve" secessionist agitations,
born of its inability to resolve the most basic socio-economic problems
after almost six decades of bourgeois rule, through state violence.
Human Rights Watch (HRW)
in one of its reports maintains that Shabir Ahmed Shah, a peaceful campaigner
for the right to Kashmiri self-determination, spent 22 years of his
life in jail, half of this in preventive detention for calling strikes,
issuing leaflets and calling for a boycott of Republic day and Independence
Another report of Amnesty
International published in the year 2001 impressed upon the central
and state governments to release all detained Kashmiri leaders and political
workers. It also maintained that the draconian law, Jammu and Kashmir
Public Safety Act-1978 should be annulled, if it cannot be so amended
as to conform to the standard of protection of human rights.
A research scholar from Kashmir
remarked, "Whether or not the act would be reviewed, continuing
with an act like this would further alienate people making the task
of healing wounds irksome."
Writer is a journalist presently
working with Jammu and Kashmir's largest circulated English daily "The
Kashmir Times". He can be reached at firstname.lastname@example.org
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