Jammu and Kashmir’s (J&K) legislator Mehraj Malik’s detention under the Public Safety Act, 1978 has ignited a storm. Even as the Opposition is calling out the BJP government, authorities have imposed prohibitory orders and suspended the internet in Doda district which Malik represents.
The J&K police on September 8 detained Malik— the lone Aam Aadmi Party (AAP) MLA—and remanded him to Bhaderwah jail for a year for disturbing public order. According to the administration, the AAP leader was named in 18 FIRs and 10 daily diary reports at various police stations in his district.
“He had openly used abusive language against public servants, hindering relief work post-floods in the district, openly used Chitta (drugs) to improve intelligence and provoked youth against the administration. He was also considering himself above the law by claiming he is the lawmaker himself,” the dossier read.
Malik is also the first sitting elected official to be detained under the stringent PSA since 2019, when the Centre took away the erstwhile state’s special status and bifurcated in two union territories. However, Malik does not stand to lose his position as an elected official because he has not been convicted as outlined in the Representation of Peoples Act, 1951.
What was the immediate trigger?
Malik was detained under the PSA a day after he allegedly used abusive language against Doda’s District Magistrate Harvinder Singh over the shifting of a damaged government healthcare centre to a private building. The same was live streamed on his Facebook page on September 5.
Earlier this year in May, Malik allegedly threatened doctors and paramedics of the Government Medical College at Doda and called them “mafia”. Following this, the doctors at the medical college went on strike and a lady doctor filed a case against Malik. In July, Malik courted controversy when he went up against the education minister Sakina Itoo over the issue of school timings post the summer break.
It is interesting to note that Malik’s detention order under the PSA was signed by Singh.
This is not the first time the AAP leader has gone up against the local administration. Commenting on Malik’s detention, advocate Shafiq Bhat said correct procedures were not followed as per guidelines and that the district magistrate who signed the order became a judge in his own cause. “No where in the law is this allowed,” Bhat said.
What is the Public Safety Act?
The Public Safety Act (PSA), 1978 is a preventive detention measure unique to J&K that allows the administration to arrest anybody who pose a threat to public order and detain them for a period of up to two years without a trial.
Under the provisions of the act, the government or District Magistrate can direct the detention of concerned individuals to prevent them from acting in a manner that could be deemed prejudicial to the security or public order.
The law was first brought by the Sheikh Abdullah-government in 1978 as a measure against timber smugglers.
Limited judicial recourse
The PSA is considered stringent because it allows for the detention of an individual for upto two years without a trial. The law enables the government to detain individuals who are considered potentially harmful even though they may not have committed a crime at the time of their detention. Though the detainees are informed of the grounds for detention, they cannot apply for bail.
The judicial review is limited to procedure as opposed to the merits of the detention.
Advocate Shafiq Bhat said the state machinery is misusing the law. The PSA doesn’t require a trial or evidence and the state can send anybody under custody for upto two years,” Bhat told BOOM. “This is a punishment without a trial,” he added.
The Kashmir-based lawyer said the PSA goes against all international covenants. If someone has to be punished, it must be only after a proper legal trial and due process,” Bhat said.
“Here there is no process. Just a dossier based on which someone can be sent to jail,” he said.
PSA: A “Lawless Law,” Human Rights Body
The PSA has been described as stringent and draconian. International human rights body Amnesty International described the PSA as a “lawless law” in its June 2019 report titled ‘Tyranny of A ‘Lawless Law’: Detention without Charge or Trial under the J&K PSA’. The report outlined how the authorities used the PSA indiscriminately and further violated human rights.
The report suggested that those jailed under this law—including minors—were routinely subjected to “revolving-door detentions”. A revolving door detention is when the PSA is used to indefinitely jail people because even if a person is released by the courts, they can often be re-detained.
This tactic was mostly used in cases related to separatists.
The report further indicted the Jammu and Kashmir High Court noting the higher judiciary did little to tackle the impunity enjoyed by the administrative authorities even as it routinely quashed detention orders which did not comply with procedures.
“This system has contributed to the already widespread fear and alienation felt by the people living in the Kashmir Valley,” the report concludes.
In 2019, the PSA was invoked to detain ex-CMs Farooq Abdullah, and his son Omar Abdullah of the Jammu and Kashmir National Conference (NC) party and People’s Democratic Party (PDP) leader Mehbooba Mufti along with other lawyers, lawmakers, activists and lawyers and businessmen ahead of the Centre’s decision to read down Article 370. The PSA was also one of the few laws that were retained post-2019.
According to a report released by the Jammu Kashmir Coalition of Civil Society (JKCCS) and Association of Parents of Disappeared Persons (APDP) more than 600 people were charged under the PSA in 2019—the highest in over a decade. The report said at least 662 people moved courts to quash the PSA against them, however the actual number of cases in 2019 could be much higher.
