Amended in 2018, J&K's 'lawless law' keeps detainees perpetually away from home

Counterview Desk
Amnesty International India, which was not allowed to release of its report “Tyranny of a ‘lawless law’: Detention without charge or trial under the J&K Public Safety Act”, has made it public, pointing towards how the Act empowers authorities to arrest a person without any trial for six months, causing havoc among the people of Jammu and Kashmir (J&K).
The authorities, even cancelling the permission granted earlier to Amnesty to release its report at a press conference, claimed that there is nothing illegal about the Act. J&K Chief Secretary BVR Subrahmanyam said the judiciary in J&K “took care of any misuse”, insisting, “We have competent courts. In many cases, PSA was upheld and also struck down. We have enough checks and balances,” he asserted.

An Amnesty note on the report:

The Jammu and Kashmir Public Safety Act (PSA) circumvents the criminal justice system in Jammu and Kashmir to undermine accountability, transparency and respect for human rights, said Amnesty International India at the launch of its new briefing, “Tyranny of A ‘Lawless Law’: Detention without Charge or Trial under the J&K PSA”.
The briefing analyses the case studies of 210 detainees who were booked under the PSA, a legislation that allows for administrative detention for up to two years in Jammu and Kashmir, between 2012 and 2018.
“The briefing revisits the PSA in the 42nd year of its existence and studies how it continues to facilitate administrative detentions and violate Indian and international human rights laws. This Act is contributing to inflaming tensions between the state authorities and local populace and must be immediately repealed,” said Aakar Patel, Head of Amnesty International India.
The text of the PSA violates several of India’s obligations under international human rights law, including respecting detainees’ fair trial rights. Examining several government and legal documents of the detainees, the briefing provides a pattern of abuse by J&K authorities. This includes detaining children, passing PSA orders without due diligence and on vague and general grounds, ignoring the limited safeguards under the Act, subjecting individuals to “revolving-door detentions”, and using the PSA to prevent release on bail and undermine the criminal justice system.

Amnesty International India found 71 cases of revolving-door detentions, where authorities had either issued a new detention order, or implicated a detainee in a new FIR, to ensure that they remain in detention. In 90% of the cases analysed, detainees faced both PSA detentions and criminal proceedings in parallel, on the basis of the same or similar allegations.
“The police appear to use the PSA as a safety net, using it to secure the detention of suspects who are released, or likely to be released, on bail. "'s Conversations with the local lawyers suggest that the state police do not favour criminal proceedings as they involve a higher standard of proof and a presumption of innocence,” said Zahoor Wani, who led the research of the briefing for Amnesty International India.
Amnesty India also found that in many cases the grounds of detention mentioned in the police dossiers and in the PSA orders passed by the District Magistrate were identical which demonstrates non-application of mind. Further, regressive amendments to the Act in 2018 have also led to detainees being held in prisons far from their homes, in violation of international human rights standards.
Meanwhile, people who were arbitrarily slapped with PSA and later acquitted continue to face difficulties in obtaining jobs or continuing their education. Amnesty International India calls on the Government of Jammu and Kashmir to immediately repeal the J&K Public Safety Act and other legislation facilitating the use of administrative detentions and ensure that all detainees held in administrative detention are released. Authorities should also provide full reparation to all detainees held in unlawful detention under PSA.
The Government of Jammu and Kashmir should also initiate a prompt, independent and impartial investigations into all allegations of unlawful detention and torture or other ill-treatment in custody, and bring to justice those responsible.
“While the J&K High Court routinely quashes detention orders which fail to comply with procedural safeguards, it does little to tackle the impunity enjoyed by executive authorities. Jammu and Kashmir will elect a new state government in 2019. This government will have a chance to break with the past and show the people of Jammu and Kashmir that their rights matter. It must not waste this opportunity,” said Aakar Patel.

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