40 Years of Superseding Due Process and Trial: Preventive Detention in India-Administered Kashmir

By: Manisha Bhau (National Law University Delhi ’21)
Guest Contributor

Introduction:

Preventive detention simply refers to the detention of a person without trial. It is based solely on the suspicion of the executive, as distinguished from punitive detention which is based on a judicial process and trial. It was through colonial hands that preventive detention came to the Indian sub-continent, and the British ushered in with it the power to restrict liberty. Unfortunately, even after the departure of the British, the leaders of independent India allowed the practice to continue and accorded it with constitutional recognition under Article 22 of the Constitution of India, making it one of the only countries to allow preventative detention during peacetime. 1

The preceding Article 21 of the Constitution reads that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” 2 While Article 22 sub-clause (1) and (2) follow the scheme of right to life and liberty established in Article 21 by laying down rights of prisoners, the subsequent sub-clauses of Article 22 allow preventive detention. 3 These clauses, therefore, stand as a dangerous misfit in the Constitution which otherwise purports to protect civil liberties. 4 Article 22 deems detainees to be a distinct category and deprives them of fundamental rights given to prisoners of proven offences, such as the right to consult a legal practitioner of their choice and to be produced before a magistrate within twenty-four hours of being arrested.

To understand the interpretation of preventive detention in India, it is equally pertinent to have a clear perspective of what Article 21 means and how it is tied to Article 22. This is because the central argument against preventive detention laws in India has been that, notwithstanding the fact that these laws are provided for under Article 22, they cannot survive the scrutiny under the preceding Article 21.

During the drafting of the Constitution of India, Article 21 had a ‘due process’ clause which found great favor among the members of the Constitutional Assembly since it bestowed procedural safeguards. It was dropped eventually in the final draft on the strong misgivings of some, especially B.N. Rau, who was the Advisor to the Constituent Assembly, that it would be difficult for the state to overcome a strict due process clause for the enactment of redistributive laws that interfered with property rights of landlords. 5 Moreover, there existed an overarching fear that such a clause would create a power imbalance between the executive and the judiciary, making the latter omnipotent in its interpretation of due process against government policies. 6 Therefore, instead of a due process clause of the style found in U.S., the phrase, “procedure established by law,” became a part of Article 21 and only the protection of life and liberty was enshrined, not that of property. 7

Ousting such a fundamental principle from the Constitution did not go well. In response, members of the Assembly pushed for compensation in the form of Article 15A, which finally became Article 22 of the Constitution of India that exists today. Through Article 22 the drafters set out minimum thresholds that could not be deviated from, even by a procedure established by law. They expressly provided for the right to a legal counsel, the right to be informed of the grounds for detention, and the right to be produced before a judicial magistrate within twenty-four hours of an arrest. These became the indispensable elements for every arrest or detention in India. However, clause 3 of Article 22 created an exception in cases of preventive detention whereby it created a quasi-judicial body called an Advisory Board. The Union List in the Seventh Schedule of the Constitution that lays down subjects that the Union Government is empowered to legislate upon includes “Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.” 8

During British rule, there were several acts that were put to use to suppress the freedom of movement, such as the East India Company Act of 1784, the Bengal State Prisoner’s Regulation of 1818, the Defence of India Act of 1915, and the Anarchical and Revolutionary Crimes Act of 1919, popularly known as the Rowlatt Act. The Regulation of 1818 laws allowed for detention based on “reasons of State” that were not “sufficient ground to institute any judicial proceeding.”9

In the seventeen laws that the British enacted allowing preventive detention, they gave themselves the authority to detain a person who posed a threat to public order, public safety or the defence of British India. 10 There were widespread protests, especially against the Rowlatt Act which gained the name the Black Act. Thousands of members of the Indian National Congress, including leaders like Mahatma Gandhi, were detained by the British under these laws solely based on their subjective satisfaction, and post-Independence these detention practices have continued. 11

The primary explanation for this decision was the unprecedented violence that gripped the subcontinent during partition. When the British finally left the sub-continent as India and Pakistan, demands of secession from within India and foreign threats seemed real and encouraged the Assembly members to rethink the power to detain. While some members pointed to the absence of such a provision in other newly drafted constitutions, such as that of Japan, and that such an unprecedented clause in any constitution ought to be left to the Parliament. 12 But, for many others the emphasis gradually shifted from questions of liberty to the law and order problems that surfaced in the immediate aftermath of independence. Finally, it unfortunately turned out so that the freedom fighters who now occupied the Government’s seat saw eye-to-eye with their colonial rulers on the necessity to curtail civil liberties to avert further division of the country. 13

B.R. Amedhkar expressed:

“We do not know how the situation in this country will develop what would be the circumstances which would face the country when the Constitution comes into operation, whether the people, and parties in this country would behave in a constitutional manner in the matter of getting hold of power, or whether they would resort to unconstitutional methods for carrying out their purposes. If all of us follow purely constitutional methods to achieve our objective I think the situation would have been different and probably the necessity of having preventive detention might not be there at all.” 14

Only one month had passed since the Constitution of India came into force when the Preventive Detention Act, 1950 (‘1950 Act’) was passed and since then India has always had a preventive detention law. 15 A literal reading of Article 22 of the Constitution was never a ray of hope. For any attempt to curtail preventative detention, barring a constitutional amendment itself, one would have to find a solution in Article 21. The burden shifted to the courts who were tasked with fitting preventive detention in the otherwise ‘democratic’ constitution. 16 At different points courts have pointed to the need to “jealously watch” the procedures that the Constitution has prescribed for ensuring justice to detainees, but they have never made the complete journey of striking down a law on the ground of unconstitutionality for violating the right to life and liberty. 17

In the early phase, the approach of the courts was shaped by the original intent of the drafters. In A.K. Gopalan. v. State of Madras, the petitioner challenged the constitutionality of the 1950 Act for violating Article 21. 18 The challenge was accepted against S.14 that disallowed courts from accessing materials on the basis of which a detention order was passed, and the rest of the Act was upheld. At the core of the Court’s decision was the fact that it never tested the Act for having an objectively fair and reasonable procedure since Article 21 did not require due process. It only required that a law should have a “procedure established by law” and so the test was simply whether a procedure had been established and whether it had been followed. 19 The justness of the prescribed procedure was not within the Court’s mandate. The leading contention of the Government of India was that the Court only had to examine compliance with Article 22 for testing the constitutionality of a preventive detention law as Article 22 was the “complete code” on the subject. A careful reading would show that while the complete code approach was rejected, Article 21 was in any case of limited assistance in challenging a preventive detention law since all that the Parliament was obligated to do before depriving people of such liberty was to deprive them through a procedure established by law. It was here that the absence of an abstract standard of due process in testing laws was truly felt.

The majority opinion’s observations of the inter-relation between Article 21 and Article 22 was especially peculiar. It rejected a strict application of complete code that would divorce Article 21 from Article 22, but it held that on questions expressly provided for in Article 22 it was the complete code.

The majority opinion clarified that the protection of Article 21 was limited to the extent that no Parliament could enact such a preventive detention law where it completely foregoes a procedure.

“Parliament could have made a law without any safeguard or any procedure for preventive detention. Such an autocratic supremacy of the legislature is certainly cut down by Article 21[…]If the legislature prescribes a procedure by a validly enacted law and such procedure in the case of preventive detention does not come in conflict with the express provisions of Part III or Article 22(4) to (7), the Preventive Detention Act must be held valid notwithstanding that the Court may not fully approve of the procedure under such Act.” 20

Therefore, the Court in Gopalan did not reject outright the notion that a law ought to be tested against different fundamental rights found in Part III, but clarified that where a clause expressly dealt with an issue in terms carving out an exception, that clause would be conclusive. In its interpretation of the rights that individuals had as per ‘procedure established by law’ in Article 21, the majority opinion made it plenty clear that a contextual standard that would be applied on a case-to-case basis was not the drafters’ choice,

“To read the word “law” as meaning rules of natural justice will land one in difficulties because the rules of natural justice, as regards procedure, are nowhere defined. As such, in my opinion, the Constitution cannot be read as laying down a vague standard. This is particularly so when in omitting to adopt “due process of law” it was considered that the expression “procedure established by law” made the standard specific.” 21

In the opinion of Shasti, J., he elaborated that Article 21 protected the “the substantive rights by requiring a procedure and Article 22 [gave] the minimum procedural protection.” Article 22 (4) to (7) put forth procedural requirements for preventive detention, such as detention beyond three months, requires the approval of an Advisory Board, and a detainee ought to be informed of the grounds of their detention and afforded the earliest opportunity of representation before the Board. The test of constitutionality was satisfied as long as there was a “procedure is provided as envisaged by Article 21 and the compulsory requirements of Article 22 (were) obeyed.” 22

This approach was overturned in R.C. Cooper,  a case dealing with legality of bank nationalisation in India. The context was that of right to property as enshrined in two separate Articles then—Article 19(f) and Article 31. The former gave the people the right to hold and dispose property which could be restricted only by a reasonable restriction, the latter allowed for compulsory acquisition of property by the state for public purpose. The Court was of the opinion that it was not solely the nature of action of the State that had to be seen, but its effect on different individual rights of Part III had to be seen as well. 23

In 1978, the foundation of constitutional law in India was reformed when the seven-judge bench of the Supreme Court in Maneka Gandhi v. Union of India read in the ‘due process’ standard in Article 21. 24  The case related to the Passports Act, 1967 and the procedure established for issuing or cancelling of a passport therein. The Court noted,

“Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements ? Obviously, procedure cannot be arbitrary, unfair or unreasonable.” 25

This expanded the powers of the judiciary as the Court made it abundantly clear that the standard ought to flow from the entirety of Part III of the Constitution as all Articles give meaning to each other as clarified in R.C. Cooper. This means that any preventive detention law has to independently satisfy the requirement of due process in Article 21, which is a far more stringent test than the limited safeguards of Article 22.

Finally, it was in A.K. Roy v. Union of India that the Supreme Court had the chance to apply the widened reading of Article 21 to preventive detention. A.K. Roy is the foremost decision on preventive detention in India till date, in which the Court upheld the constitutionality of the severely criticised National Security Act of 1980 by adopting a skewed application of the Maneka Gandhi decision. 26 In the following part of this article, the author shall examine the specific arguments made, and the fallacies therein in A.K Roy, and its application to the Jammu and Kashmir Public Safety Act (‘PSA’).

II. Preventive Detention in Jammu and Kashmir

The journey of preventive detention in Jammu and Kashmir has been different and laden with more suffering and shortcomings than other states in India. The PSA was first passed in 1946, followed by the Preventive Detention Act of 1954. 27 The 1954 Act was initially enacted for a period of five years, but it was allowed to continue until 1967 by passing amendments before its expiration. In the same year as the enactment of the Act, a Presidential Order was passed which stated that only the state legislature of J&K could enact preventive detention laws for the state and such laws would be immune from judicial challenges. This immunity was extended three times by five year periods, until the prevailing PSA was enacted in 1978.

The PSA prescribes preventive detention for acts that are prejudicial to the “security of the state” and to “maintenance of public order.” 28 Under Section 14, the Government shall constitute an Advisory Board, which in implementation has been of a permanent nature and plays a crucial role in confirming detention orders. 29  The authority to pass orders rests with the District Commissioners, and District Magistrates. 30 A detention order has to be referred to the Board within four weeks along with the grounds of detention and the representations made by the detainee, if any. The Board considers this material and has the power to call for more information from the Government or from the detainee if it finds so necessary. 31  The Board may also provide an opportunity of hearing to the person if they so desire. The report has to then be submitted to the Government within eight weeks from the date of detention. 32 The Act states that the detainee shall not be entitled to appear by a legal practitioner and the report and proceedings of the Board are kept confidential.

Kashmir has been a disputed territory since independence, and it is since then that preventive detention has been put to use for taming its people. Detentions in the name of security and territorial integrity are a part of Kashmir’s history for so long that it is now perceived that without this absolutist power a peaceful democracy cannot be sustained. 33 This has turned into a culture of preventive detention that thrives on vague laws and even poorer implementation that silences any dissent. It thrives not only on the actual practice of detention but on the corresponding fear created in the minds of people that any step outside the line could disrupt their and their family’s lives forever. For a long time, the highly militant presence of the Indian state in the Kashmir valley has been justified with the aim of transforming the population into a submissive group. 34 In fact, the Indian army ‘has achieved a dubious distinction of being the most active peacetime force in the world fighting our own people be it in Kashmir or in the northeast for several decades.’ 35 The creation of a military state in Kashmir has only acted as a catalyst to the insurgency in the area, and for the growing despair and resentment among its youth against the state. 36

In 2015, a coalition Government of the People’s Democratic Party and Bhartiya Janata Party (‘BJP’, the ruling party at the Union level) was formed after the state elections. From the 2015 elections, the journey has started moving backwards. The coalition fell apart due to differences in the two parties’ approach to Kashmir, leading to imposition of Governor’s rule by the Union Government. The latest and the biggest attack on Jammu and Kashmir’s autonomy came in August, 2019 with revocation of Article 370 of the Constitution which granted it special status in the federal structure of India. 37 Internal autonomy was a pre-condition to accession to India in 1949, and Article 370 was the bedrock of this autonomy that preserved its culture and identity from an onslaught of outsiders. 38 Jammu and Kashmir, which is now a Union Territory, does not enjoy the same legislative powers and independence as it earlier did. While some have called the amendment unconstitutional and a direct attack on Kashmiris, others emphasised the questionable manner in which it took place. 39

There was no prior publication, negotiation and discussion in the Parliament or outside it. 40 At the time, and for nearly six months prior to the announcement, there had been no elected state legislature and Chief Minister of J&K remained vacant as the Union Government controlled the region by exercising the route of Governor’s rule. In the background of the international and national outcry that followed, the entire Kashmir valley was placed under curfew by the Union Government and all channels of communication, including mobile connections and internet, were closed. 41 In the months that followed, the flow of information from Kashmir’s to the rest of the country became entirely stagnant and gradually reports revealed that in the limited amount of time that has passed since, approximately four thousand people have been detained under PSA, including former chief ministers, other political leaders, and activists. 42

An Amendment was made in 2012 in wake of the rampant criticism which changed the period of detention. For acts prejudicial to public order, it was reduced from twelve months to three months at first instance, extendable to twelve months, and for acts that threaten security of the state, it was reduced from two years to six months at first instance, extendable to two years. The Amendment was nothing but a specious attempt to signal that the Act was now less stringent, which was simply not the case. The attempted solution was empty in that it failed to notice that without procedural safeguards, any law, and especially one that operated completely outside judicial oversight was bound to be misused, and extraordinarily so in a region marked for the violent tussle between police and the locals. Thus, the Government’s failure in bringing any real change, invited more international criticism. 43

The proviso to Section 10 of the PSA prohibited lodging of state subjects outside the J&K region. This was because in the current system without a right to inform their family or a lawyer, it was nearly impossible to trace a detainee kept in faraway cities. In 2018, the proviso was deleted during the Governor’s rule. On its end, the State Government clarified that this step was taken to comply with the Supreme Court’s directions on reducing overcrowding in jails, and to keep “hardcore terrorists’ separate from detainees.” 44 This has been called an ingenious route taken by the Government for meting out punishment to detainees by alienating them from their community. 45 A majority of people detained recently during the protests against the revocation of special status have been reportedly sent to faraway jails. 46 In addition to this, there are other important questions and consequences that arise. Firstly, the detainee is physically separated from the region that is the source to their only legal remedies, that is, a habeas corpus petition before the J&K High Court, and the Advisory Board responsible for hearing representations by the detainee. Secondly, was it not an option for the State Government to simply construct new jail premises for detainees in J&K. According to the J&K High Court, shifting an undertrial prisoner charged under the Arms Act and the Ranbir Penal Code (until 2019 when state laws of J&K were nullified, Ranbir Penal Code or RPC was the penal code applicable in J&K, as opposed to the Indian Penal Code or IPC applicable to the rest of India) without permission of the trial court even in the case of an administrative exigency such as overcrowding or safety was not permitted. 47  So while on one hand, imprisonment outside one’s state without the court’s permission was not allowed in punitive arrests, it is allowed in preventive detention. In 2018, another amendment was made by way of an Ordinance which dramatically changed the composition process of the Advisory Board. It removed the requirement of consulting the Chief Justice of the J&K High Court before appointing members to the Advisory Board, thus removing a judicial check at any level. This underhanded step to divest the judiciary of any power in appointing the Advisory Board is a clear violation of the principle of separation of powers by the Government.48

The history of the PSA is a history of oppression and control. 49 The repeated use since the 1970s has made it a permanent feature of life in Kashmir as the region is portrayed to be undeserving of fundamental rights granted to others because of its association with danger and instability. It is portrayed as ‘risk society’ and the exceptional circumstances that are in fact true about Kashmir owing to its socio-politico history are politically coloured to convey that development and counter-militancy of the area requires equally extraordinary steps. This argument is stretched to its extreme in the profuse use of preventive detentions. 50 What we have today is an idea of normalcy around detaining people at the exclusion of judicial process and criminal trial. It has been noted that “preventive detention has operated throughout Kashmir’s modern history as a key component of political containment, coercive governance and authoritarian rule.” 51 Hallie Lulsen pointed out, “once the government is able to justify preventive detention, it is almost impossible to imagine governing without it.” 52 This approach has compounded with the muscular approach of the Union Government which has amplified anger and disenchantment against the Indian government and its security forces. 53

Since 1978, no rules or standard procedures have been framed either under the PSA. 54 Even requirements in PSA itself are rarely followed, and contempt of a court order that directs release of a detainee is common. 55 It is crucial to note that while detentions witnessed an increase, the capacity of jails in the state remained constant which itself is an attestation of custodial deaths of those who are even denied the grace of detention. 56 In 2011, Amnesty International released its first report which stated that PSA violated several international human rights obligations of India, and unfolded the practice of custodial torture and illegal detentions. 57 It categorically called the State Government to repeal the law and conduct an investigation into the allegations of abuse.

Past records of detentions under the Public Safety Act show 16,329 people have been detained under the PSA since 1998 with over one thousand people detained between March 2016 and August 2017. 58 The Advisory Board found sufficient cause to recommend confirmation of the detention order in 99.40% but the High Court quashed more than 81% of the detention orders approved by the Advisory Board. 59 These studies have found that the majority of the detention orders that get challenged before the High Court are found invalid, because either the grounds of detention were not given to the detainee or the grounds were vague and lacked application of mind. 60 A well-reasoned order is the backbone of any detention, especially for the right to make representation (which is the only right that a detainee has under PSA) to not become futile. 61  These violations are made possible by a range of factors, firstly, the substantive provisions of the Act are vaguely worded which allows the Government to detain almost anyone it wishes to, secondly, the Act does not provide adequate procedural protections such as the assistance of a lawyer, access to the Board’s report, and thirdly, even the process provided in the Act is not implemented with full vigour. The culmination of these factors, along with the absence of rules, makes the PSA a hallmark for the saying that the process is the punishment.

The Office of the United Nations High Commissioner of Human Rights and the Human Rights Watch have also reported the inherent illegalities in the Act, and its misuse for years. Year after year reports and commissions at the international, as well as the national, level have appealed to the Government of India to repeal and amend its laws, but to no avail. 62

III. Is the PSA Constitutional under the Constitution of India?

A. Section 8

In A.K. Roy v. Union of India, the Court had to decide on the constitutionality of the National Security Act, 1980 which used phrases such as “defence of India” and “security of India”.63 The challenge was not against the object of the Act per se but the procedural gaps that did not allow legal representation, or cross-examination during hearings. The foremost contention was that the provisions were vaguely defined. Ram Jethmalani argued that the phraseology was broad and vague enough to embrace conduct which was otherwise lawful. He made references to foreign laws and American jurisprudence with specifically worded laws on grave matters such as security of state and terrorism. However, the Court was of the opinion that a “minimal latitude” had to be conceded to the legislature despite vagueness in the cold print of the law, it could be justly applied based on the realities; the accruing error in this application is a natural limitation of adjudication itself. 64 It experienced no discomfort in according utmost legal value to subjective opinions of an executive officer or administrator of the Government on the basis of “life’s practical realities”. While addressing criminal law jurisprudence which crafted the requirement of appropriate definiteness of offences, the Court held that this was only to a reasonable degree of certainty and that “the use of language carries with it the inconvenience of the imperfections of language.”

The Court said,

“We see that the concepts aforesaid, namely, ‘defence of India’, ‘security of India’, ‘security of the State’ and ‘relations of India with foreign powers’, which are mentioned in Section 3 of the Act, are not of any great certainty or definiteness. But in the very nature of things they are difficult to define. We cannot therefore strike down these provisions of Section 3 of the Act on the ground of their vagueness and uncertainty. We must, however, utter a word of caution that since the concepts are not defined, undoubtedly because they are not capable of a precise definition, courts must strive to give to those concept a narrower construction than what the literal words suggest. While construing laws of preventive detention like the National Security Act, care must be taken to restrict their application to as few situations as possible. Indeed, that can well be the unstated premise for upholding the constitutionality of clauses like those in Section 3, which are fraught with grave consequences to personal liberty, if construed liberally.” 65

It is palpable from the wording of the National Security Act that it is not the absence of reasonable certainty, but the complete absence of any definition and degree of any certainty. While the presumption of constitutionality is one of the fundamental principles of judiciary’s regard for legislature’s authority, the principle was stretched to a harmful degree with the only protection offered to be a writ petition to the court under Article 32. In K.A. Abbas v. Union of India, the Supreme Court had held,

“The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature […] Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution…The invalidity arises from the probability of the misuse of the law to the detriment of the individual….” 66

Indian courts have in fact consistently believed that constitutional rights can be sufficiently protected by them if they let people file a petition post facto, thus dispensing with the need to enumerate a precise definition. The undeserving margin of appreciation has been offered to the executive authorities since the 1950s as is apparent in the following words of Mahajan, J., in A.K. Gopalan,

“Considering that the State is presumed to have a government that conducts itself in a reasonable way and also presuming that its officers usually will be reasonable men, it cannot be said that in making ‘satisfaction of the government’ as the standard for judging prejudicial acts.”67

The fallacy in this assumption is uncovered regularly when police dossiers submitted to the detaining authority, who is a bureaucrat, are copied and signed off as detention orders. At times the District Magistrate has even gone as far as to refuse to file a reply in court to a habeas corpus petition that challenged his order, and instead argued that the Superintendent of Police should defend the detention in court. 68 In addition to questioning how reasonable the authorities are, it is equally important to question how independent they are from political pressure. There have been instances where the Court found that the District Magistrate wrote to the police officials refusing the sign a detention order on the ground that it could be pursued under substantive law, but then a few days later he passed the detention order. 69

PSA has resulted in a parallel criminal system in J&K where preventive detention is used to bypass the ordinary criminal law as it’s easier to get a detention order than to meet the standards of an arrest warrant before a judicial Magistrate. 70 The Supreme Court on hearing a writ petition under PSA noted,

“If every infraction of law having a penal sanction by itself is a ground for detention danger looms large that the normal criminal trials, and criminal courts set up for administering justice will be substituted by detention laws often described as lawless law.”71

While preventive detention during peacetime affects human rights at any place, it is more vicious in Kashmir which has witnessed other human right violations such as torture and disappearances.  The Supreme Court has also recognised the dangers of frequent use of preventive detention in terms of the corresponding perception among officials and police,

“The tendency to treat these matters in a somewhat casual and cavalier manner which may conceivably result from the continuous use of such unfettered powers, may ultimately pose a serious threat to the basic values on which the democratic way of life in this country is founded.” 72

PSA is in no way the only law that has found itself caught in the application of phrases like ‘public order’, ‘security of state’ and ‘defence of India’ is common to many other laws in India such as anti-terror laws, sedition, etc., the scope of PSA is particularly wide. 73 During arguments before the Supreme Court in A.K. Roy, L.M. Singhvi appearing on behalf of the Supreme Court Association admired PSA as a model law in that it defined words such as public order and security, as opposed to the NSA, 1980. 74 One might prima facie assume that PSA might be a better drafted law than other Indian legislations that have no definition at all. However, the Section 8 reveals otherwise,

“(i) promoting, propagating, or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race, caste, community, or region;

(ii) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise, abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order;

(iii) attempting to commit, or committing, or instigating, provoking or otherwise abetting the commission of, mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;

(iv) attempting to commit, or committing or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order;” 75

A comparison of the aforementioned provisions with the provisions of the Ranbir Penal Code reveals that there is immense overlap between the two. In the context of anti-terror legislations in India, Ujjwal Kumar Singh noted that this overlap is not an inconsequential coincidence, it was a ‘distinctive pattern’ that led to the ‘normalisation’ of draconian laws. The interlocking between the criminal code and the extraordinary laws led to common grounds, and the option to choose the one with less procedural requirements. 76

All that Section 8 does in the name of a definition is tie the phrase ‘likely to disturb public order’ with existing offences under the Ranbir Penal Code, and not offences of a high degree but any offence with  a term extending seven years, and other offences of a much less magnitude like use of force and mischief. S. 8(ii) refers to the use of force, and S. 8(iii) refers to the offence of mischief, both of which under the RPC are punishable with as less as 3 months of punishment. 77 At no point does it qualify the degree of disturbance to public order itself, or that threat should be of a serious and grave nature, and of such urgency that arrest through a judicial route would be in vain. This means that an act otherwise punished with a maximum punishment of three-months can simultaneously lead to public disorder that’s grave enough to mandate detention for that same period, only without trial.

B. Section 19 and 22

Section 22 of the PSA offers absolute protection to those acting in “good faith” in furtherance of the Act. 78 In A.K. Roy v. Union of India, the Court held a similar section to be valid because,

“If the policy of a law is to protect honest acts, whether they are done with care or not, it cannot be said that the law is unreasonable […] the line which divides a dishonest act from a negligent act is often thin and, speaking generally, it is not easy for a defendant to justify his conduct as honest, if it is accompanied by a degree of negligence. The fact, therefore, that the definition […] includes negligent acts in the category of the acts done in good faith will not always make material difference to the proof of matters arising in proceedings under section 16 of the Act.” 79

It is understandable that the intention to protect officials from incessant prosecutions is noble, but the corollary to that is not a blanket ban on any kind of action. The Court’s one paragraph long analysis that there it is immaterial whether negligence is a ground for a suit or prosecution displays its myopic view. In its inability to grasp with the notion of the standard of proof, which would vastly vary in a claim that an authority acted dishonestly, and a claim that they acted negligently, the Court’s sole concern towards the authorities is evident. The tougher burden to discharge is that of mens rea, that is to show that there was a malicious intent behind an act, as opposed to showing that a person acted without reasonable care or recklessly.

One of the many practices that has spawned because of this Court-approved immunity is door-to-door detention. It means that as soon as a detainee is released on a court order, the authority passes a new order and detains the person on the same day or a few days. This process is essentially a cycle. Under Section 19 of PSA, a new order can be based on the same grounds if the previous order was not legal because of a technical defect. 80

In Mst. Zahida v. State of Jammu and Kashmir, the J&K High Court on hearing the petition filed by Mst. Zahia, who had been detained on the same grounds for the third time after the previous orders were quashed, held that Section 19 could not be used to pass a detention order on the same grounds when the previous detention order had been quashed. 81 Be that as may, owing to the sweeping protection granted to authorities flouting of Court’s decision continues. 82

IV. Transparency

The first step to make the preventive detention system safer is to make the system more transparent. The proceedings and the report of the Advisory Board are already confidential under PSA and the Government exercises ample benefit in keeping the system behind closed doors, and there is no rationale behind hiding information of the detainees. The Right to Information Act, 2005 requires that public authorities disseminate accurate information about their functioning from time to time. 83 Today there is no source of information on names of detainees, their date of detention, or place of detention. PSA does not provide for sending of information to families, lawyers or friends, people are simply left to go pillar to post. It is the want of public record that has enabled the Government to deliberately changed dates on detention orders for extending the period of detention. As the Supreme Court has taken a lead in upholding ‘right to truth’ in cases of human rights violations post facto such as encounters, on the other hand, it must also devise rules to prevent unlawful detentions. After all, prevention of something grave and unlawful as a principle should not be a one-way route in favour of detentions. 84

V. Conclusion 

In J&K, young students, intellectuals, and activists continue to be deprived of their fair chance to express their views on government policies and atrocities due to the looming danger that at any point they can be taken to a faraway jail. The silence ensued using detention laws is a crucial component of the larger plan to avert international attention from the region. The indiscriminate use of preventive detention, especially after August of 2019 is the testimony of the disenchanting and radical attempt to open up routes to clamp down on the local voices. There are contradictory statements in the news on the August 2019 protests. On one hand, the government claims that Kashmir is peaceful, and on the other hand the international media identifies it as silence. 85

The rationale of deterrence is that the individual is informed of lawful and unlawful acts, and when they exercise their personal choice to move further away from unlawful conduct. A system of laws that normalises lawful conduct as demanding detention, and applies to it the same procedures and deviations as in the case of anti-terror laws, blurs people’s own sense of the right and wrong. They are alienated from concepts of law and justice. When laws that deviate from regular special procedures and as intended to be temporary legislation are imposed on a community or a specific region are imposed for years, the people are perpetually made to feel like criminals by their simple existence in that group. The vagueness of the laws running on the subjective opinions of the executive makes it impossible for the people to escape this trap. The individual’s decision can never be accurate because the vagueness ensures that the final word is always of the government.

One must not lose sight of the fact that the Public Safety Act is only one of the many laws and systems at work in Kashmir. Since there is little hope that the Government will repeal the law altogether, the least that it can do is amend the specific provisions discussed above, and undertake an in-depth reformation of the entire prison system starting with the formulation of rules, and compliance with Supreme Court rulings and National Commission of Human Rights reports.

 

[1] Uma Devi, Constitutionality of Preventive Detention, in Arrest, Detention, and Criminal Justice System: A Study in the Context of the Constitution of India (Oxford U. Press, 2012).

[2] India Const. art. 21, cl. 3.

[3] Id. art. 22, cl. 3.

[4] P.K Tripathi, Preventive Detention: The Indian Experience, 9(2) The Am. J. Comp. L.  219, 226 (1960); A.G Noorani, Preventive Detention, in Challenges to Civil Rights Guarantees in India (Oxford Univ. Press, 2012).

[5] Vijayashri Sripati, Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950-2000), 14 Am. U. Int’l L. Rev. 413 (1998).

[6] Manoj Mate, The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases, 28 (1) Berkeley J. Int’l L. 216, 222-223 (2010).

[7] U.S. Const. amend. V.

[8] India Const. art 246.

[9] Shamuel Tharu, Insurgency and the State in India, 14(1) South Asian Survey 83, 87-100 (2007).

[10] Hallie Ludsin, The History of Preventive Detention in India, in Preventive Detention and The Democratic State 84, 88-90 (2016).

[11] Durba Ghosh, Gentlemanly Terrorists: Political Violence and the Colonial State in India, 1919–1947 119-145 (Cambridge Univ. Press, 2017).

[12] Constituent Assembly Debates, Vol. IX, 16-54. (Sep. 16, 1949)

[13]supra note 10 at 90.

[14] Constituent Assembly Debates, Vol. IX, 123. (Sep. 16, 1949)

[15] Noorani, supra note 2.

[16] Rekha v. State of Tamil Nadu, (2011) 4 S.C.C. 260 (India).

[17] Dr. Ram Krishna Bharadwaj v. the State of Delhi, (1953) S.C.R. 708.

[18] A.K. Gopalan v. State of Madras, A.I.R 1950 S.C. 27 (India); The Preventive Detention Act, No. 4 of 1950.

[19] Id. ¶ 26.

[20] See Id.

[21] Id. ¶ 21

[22] Id. ¶ 292-295.

[23] Rustom Cavasjee Cooper v Union of India, (1970) 1 S.C.C. 248 55 (India).

[24] Maneka Gandhi v. Union Of India, (1978) 2 S.C.R. 621 (India).

[25] Id. ¶ 5.

[26] A.K. Roy v. Union of India and Anr, (1982) 2 S.C.R. 272 (India).

[27] Haley Duschinski & Shrimoyee Nandini Ghosh, Constituting the Occupation: Preventive Detention and Permanent Emergency in Kashmir, 49 J. Legal Pluralism and Unofficial L. 314, 319 (2017).

[28] Jammu and Kashmir Public Safety Act § 8, No. 6 of 1978, India Code.

[29] Id. § 14.

[30] Id. § 8(2).

[31] Id. § 15.

[32] Id. § 16.

[33] Kuldeep Mathur, The State and the Use of Coercive Power in India, 32 Asian Survey 337, 343 (1992).

[34] Gautam Navlakha, Security Policy: Enemy of Democracy, 37 Econ. & Pol. Wkly. 3420, 3424 (2002).

[35] Gautam Navlakha, National Security: Prisoners of Rhetoric, 32 Econ. & Pol. Wkly. 2356, 2356-2358 (2003).

[36] Ayjaz Ahmad Wani & Dhaval D Desai, Observer Research Foundation, The Road to Peace in Kashmir: Public Perception of the Contentious AFSPA and PSA 17-19 (2018).

[37] Ministry of Law and Justice, Notification Aug. 6 (2019), http://egazette.nic.in/WriteReadData/2019/210243.pdf.

[38] A.G Noorani, Accession to India, in Article 370: A Constitutional History of Jammu and Kashmir (Oxford Univ. Press, 2011).

[39] Haseeb A. Drabu, Modi’s Majoritarian March to Kashmir, N.Y. Times, Aug. 8, 2019, https://www.nytimes.com/2019/08/08/opinion/modis-majoritarian-march-to-kashmir.html.; Akshay Deshmane, Kashmir: Scrapping Article 370 “Unconstitutional”, “Deceitful” Says Legal Expert A.G. Noorani, Huffington Post (Aug. 5, 2019), https://www.huffingtonpost.in/entry/kashmir-article-370-scrapping-constitutional-expert-reacts-noorani_in_5d47e58de4b0aca341206135.

[40] Shivam Vij, No debate, no discussion, no dissent, and the Constitution is changed, The Print (Aug. 5, 2019), https://theprint.in/opinion/no-debate-no-discussion-no-dissent-and-the-constitution-is-changed/272436/.

[41] Riyaz Wani, After three weeks of lockdown, this is what Kashmir looks like, Quartz India (Aug. 23, 2019,) https://qz.com/india/1693598/inside-kashmir-three-weeks-after-article-370-was-scrapped/.

[42] About 4,000 people arrested in Kashmir since August 5, The Hindu (Aug. 18, 2019,) https://www.thehindu.com/news/national/about-4000-people-arrested-in-kashmir-since-august-5-govt-sources-to-afp/article29126566.ece.

[43] See Amnesty International, Still a ‘lawless law’ (2012).

[44] Govt asks HC to dismiss Bar’s PIL on shifting of prisoners outside J&K, The Northlines (Feb. 6, 2019), http://www.thenorthlines.com/govt-asks-hc-to-dismiss-bars-pil-on-shifting-of-prisoners-outside-jk/.

[45] Rep. of the Office of the U.N. High Commissioner for Human Rights, Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019 18 (2019).

[46] Devjyot Ghoshal, Fayaz Bukhari & Alasdair Pal, The transported: Kashmiri protesters sent far from home, Reuters (Oct. 8, 2019), https://www.reuters.com/article/us-india-kashmir-detentions-insight-idUSKBN1WM2D6.

[47] Abdul Wahid Mir v. State of J&K, (2019) Cri L.J. 1841(India).

[48] Deeptiman Tiwary, How PSA Board has become a rubber stamp, Indian Express (Sept. 18, 2019), https://indianexpress.com/article/india/how-psa-board-has-become-a-rubber-stamp-oks-almost-all-detention-orders-6004522/.

[49] Behind the Kashmir Conflict: Abuses by Indian Security Forces and Militant Groups Continue, Hum. Rts. Watch (July 16, 1999), https://www.hrw.org/reports/1999/kashmir/judiciary.html.

[50] Hallie Ludsin, India: The Risk Society and the Slippery Slope, in Preventive Detention and The Democratic State 195, 201 (Cambridge Univ. Press, 2016).

[51] Haley Duschinski & Shrimoyee Nandini Ghosh, Constituting the Occupation: preventive detention and permanent emergency in Kashmir, The Journal of Legal Pluralism and Unofficial Law 15-27 (2017).

[52] Ludsin, supra note 10 at 96.

[53] Meenakshi Ganguly, Kashmir needs justice, not just development, Hum. Rts. Watch (May 29, 2018), https://www.hrw.org/news/2018/05/29/kashmiris-need-justice-not-just-development.

[54] No Rules, SOPS for ordering preventive detentions under J&K PSA, Commonwealth Hum. Rts. Initiative, https://www.humanrightsinitiative.org/blog/no-rules-sops-for-ordering-preventive-detentions-under-jk-psa.

[55] Allard K. Lowenstein, Int’l Hum. Rts. Clinic Yale Law School, The Myth of Normalcy: Impunity and the Judiciary in Kashmir 26-28 (2009).

[56] Prabhu Ghate, Kashmir: The Dirty War, 37 Econ. & Pol. Wkly. 313, 316 (2002).

[57] Amnesty International, A ‘Lawless Law’: Detentions under the Jammu and Kashmir Public Safety Act (2011).

[58] Lawless Law? No rules, procedures for detaining a person under PSA: Reveals RTI, Greater Kashmir (Jan. 5, 2018), https://www.greaterkashmir.com/news/kashmir/lawless-law-no-rules-procedures-for-detaining-a-person-under-psa-reveals-rti/.

[59] Venkatesh Nayak &  Dr. Shaikh Ghulam Rasool, RTI reveals Advisory Board under J&K Public Safety Act spent seventy-five percent of its budget upholding detention orders which the J&K High Court quashed later on, Commonwealth Human Rights Initiative (Aug. 8, 2018), http://www.humanrightsinitiative.org/blog/rti-reveals-advisory-board-under-jk-public-safety-act-spent-75-of-its-budget-upholding-detention-orders-which-jk-high-court-quashed-later-on.

[60] Gaurav Bhawnani, Rule of the Lawless Law: Detentions under the Public Safety Act, 53 Econ. & Pol. Wkly. 36, 37 (2018).

[61] Fehmeeda Sofi v. State, (2010) S.C.C. 273 (India).

[62] Rep. of the Office of the United Nations High Commissioner for Human Rights, Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan 48 (2018); Ministry of Home Affairs, Report of the Committee to review the Armed Forces Special Powers Act, 1958 (2005).

[63] A.K. Roy v. Union of India, (1982) 1 S.C.C. 271; National Security Act, No. 65 of 1980, India Code.

[64] Id. ¶ 61.

[65] Id. 63.

[66] K.A Abbas v. Union of India, (1970) 2 S.C.C. 780 46 (India).

[67] A.K. Gopalan v. State of Madras, A.I.R 1950 S.C. 156 (India).

[68] Bunny Gupta v. State of Jammu and Kashmir, WP(Crl) No.35/2019 (India).

[69] Mohd Rashid Malik v. State of J&K and Others, WP(Crl) No.57/2019 (India).

[70] Upendra Baxi, The Crisis of the Indian Legal System 30 (Vikas Publishing, 1982).

[71] Jaya Mala vs Home Secretary, AIR 1982 S.C. 1297 (India).

[72] G. Sadanandan v. State of Kerala, (1966) 3 S.C.R. 590 (India).

[73] See Granville Austin, Working a Democratic Constitution: The Indian Experience 656 (Oxford Univ. Press, 2003);

[74] A.K. Roy v. Union of India, (1982) 1 S.C.C. 27 64 (India).

[75] Jammu and Kashmir Public Safety Act § 8, No. 6 of 1978, India Code.

[76] Ujjwal Kumar Singh, The State, Democracy and Anti-Terror Laws in India 71 (Sage Publications, 2007)

[77] The Jammu and Kashmir Ranbir Penal Code, No. 12 of 1988 § 350, 425, India Code.

[78] See Jammu and Kashmir Public Safety Act § 22, No. 6 of 1978, India Code.

[79] A.K. Roy v. Union of India, (1982) 1 S.C.C. 27 84 (India).

[80] See Jammu and Kashmir Public Safety Act § 19, No. 6 of 1978, India Code.

[81] Mst. Zahida v. State of Jammu and Kashmir, (2008) (1) S.L.J. 245 (India).

[82] See supra note 47 at 16.

[83] The Right to Information Act, No. 22 of 2005, India Code.

[84] Extra-Judicial Execution Victim Families Association v. Union of India, (2013) 2 S.C.C. 493 (India).

[85] BBC, Reuters And The Modi Government Have Entirely Different Reports On Kashmir, Huffington Post (Aug. 13, 2019), https://www.huffingtonpost.in/entry/bbc-reuters-and-the-modi-government-have-entirely-different-reports-on-kashmir_in_5d514826e4b0fd2733f30803.

 

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