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Jammu And Kashmir Public Safety Act-1978

By Syed Junaid Hashmi

01 May, 2007

One 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 struggle.

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 act.

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 Beig.

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 day.

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 [email protected]

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