Article 370 Stays Scrapped in J&K, But Some Harsh Pre 2019 Laws Remain in Force

What really is the Jammu and Kashmir Public Safety Act? And why is it a problem?

"People of Jammu and Kashmir and Ladakh were deprived of their rights (prior to abrogation of Article 370)," Prime Minister Narendra Modi had said two days after the parliament approved a resolution abrogating special status to Jammu and Kashmir under Article 370 of the constitution. He added:

"With the abrogation of Article 370, the dreams of Sardar Vallabhbhai Patel, BR Ambedkar and Syama Prasad Mookerjee have been fulfilled. A new era in Jammu and Kashmir has now started."

Meanwhile, however, the valley reeled under a lockdown, internet lines were snapped, the region shut off from the country for several months and nearly every figure of prominence who did not toe the Modi government's line (including former chief ministers, activists and journalists) were detained.

But, of course, if the Modi government hailed the abrogation as a win for rights and democracy, then it must be true.

But a few facts require reckoning:

According to a report by The Indian Express, between 2019 and August 2021 (when the report was published), the Jammu and Kashmir administration booked:

• Over 2,300 people in more than 1,200 cases under the Unlawful Activities (Prevention) Act (UAPA)

• 954 people under the Public Safety Act (PSA)

The UAPA, as we all know, is a prominently misused, draconian law, under which grant of bail is virtually impossible if one has been booked in a terror-related case. This law is applicable across the country.

The Jammu and Kashmir Public Safety Act, 1978, (PSA) on the other hand, is a Jammu and Kashmir specific law. It was introduced by the then Chief Minister Sheikh Abdullah, under reported claims of a government bid to prevent timber-smuggling.

So essentially the PSA predates the abrogation by 41 years. With the abrogation of Article 370, the central government made changes to over 400 laws in the newly created union territories of Jammu and Kashmir and Ladakh. The Ranbir Penal Code was replaced by the Indian Penal Code. But the state PSA was one of the state laws retained under the Jammu and Kashmir Reorganisation Act of 2019.

But what really is PSA? And why is it a problem?

What is PSA?

The PSA is a preventive detention legislation which allows the authorities to detain a person without conviction for up to two years if they are deemed a threat to public order or national security. Under it, none of the regular safeguards that are assured to an accused under the criminal justice system apply.

In an older article for The Quint, human rights lawyer Shrimoyee Ghosh explained:

“There is no police complaint, no investigation, no charge sheet, no judge, no judicial scrutiny. It is just based on police reports, intelligence reports, often very secret information, vague FIRs and the grounds are often not provided to the detainee.”

Under this act, an accused has a right to challenge his detention before an advisory board, but they are not entitled to representation by a lawyer.

District commissioners and district magistrates are the designated authorities for passing such detention orders.

Unfortunately, the Kashmir valley has been witness to an indiscriminate application of this opaque legislation to quell free speech, and independent reportage.

Some Problems with the PSA

As pointed out by Ghosh, “Under the PSA, you can hold a person for 3 months, if it is under maintenance of public order. Otherwise, if it is national security, then you can hold them for six months – and it is renewable for up to two years in that case.”

This is especially jarring considering that the maximum sentence for the offence of mischief under the IPC is three months, but attempting to abet, provoke or commit mischief that is likely to disturb public order is punishable under the PSA, as well.

Observing that preventive detention has been used historically in Kashmir, and that even before the PSA “they had a series of similar preventive detention legislations – protected under Article 35(c) – even more draconian than the PSA,” Ghosh told The Quint.

“I don’t think any preventive detention law is constitutional. It shouldn’t be a part of our fundamental rights chapter. And it is very unusual for a liberal democracy to have a preventive detention law like that,” she added.

Further, Ghosh explained that “particularly, in Kashmir, it is also being weaponised against particular kinds of profiled people, and used in this kind of routine way – multiple detentions, back to back detentions, holding people for decades under the PSA orders.”

“The purpose of these preventive detention legislations is to deal with political dissent. It is almost a part of the counter-agency apparatus, where any kind of political activity or what the state perceives as a political threat, is translated as a public order and security threat, and the person carrying out such activity is detained.”

Shrimoyee Ghosh

The PSA, meanwhile, also accords an unfair advantage to the executive by - 1. disallowing legal representation during appeal before the advisory board 2. exempting the detaining authority from disclosing any information if it so chooses on grounds of public interest 3. allowing for detainees to be held for prolonged spells on the mere suspicion of the likelihood of an offence.

“Estimates of the numbers of persons detained under PSA over the last 20 years range from 8,000-20,000, according to Amnesty International,” Ghosh had pointed out in an article from 2017 for Café Dissensus, further explaining that the huge disparity in numbers is “because preventive detention is particularly susceptible to being unrecorded and undisclosed.”

Examples of PSA Use in the Valley

A very recent example of the application of PSA in the valley, is the detention of Fahad Shah, a Kashmiri journalist. In a classic example of “revolving-door detention" in which an individual is detained under the Act, just as they are getting bail in some matter, The Kashmir Walla editor had received bail in two (of now four) cases against him – the arrests for which had been consecutive – and was awaiting his bail hearing in the third case, when he was slapped with the Public Security Act.

It must be pointed out that in the course of the six months of his incarceration, Shah has been passed around like parcel from one lock-up to another (including police stations and district jail and an interrogation facility), and has nearly been released several times but never quite.

But Fahad Shah is only one such example.

Sajad Gul, 26, another Kashmiri journalist, was first arrested on 6 January and booked under Sections 120B (Punishment of criminal conspiracy), 153B (assertions prejudicial to national integration) and 505 (Statements conducing to public mischief) of the IPC.

However, on 15 January, the Jammu and Kashmir district court at Bandipora granted Gul bail. A day later, a preventive detention order under the PSA was slapped against him and he was shifted to Kot Bhalwal jail in Jammu.

In April this year, Kashmiri Journalist Asif Sultan, 35, was released by a court on bail in a case for which he had been incarcerated since 2018, but was rearrested under the PSA.

In its 2019 edition of 'Tyranny of a Lawless Law' – which is no longer accessible online in India – Amnesty International had analysed case studies of 210 people who were booked under the PSA between 2012 and 2018.

The report stated that they found 71 cases of “revolving-door detentions”, where the authorities had either issued a new detention order, or “implicated a detainee in a new FIR, to ensure that they remain in custody.”

Further, the report said that in 90 percent of the cases they analysed, the detainees faced both PSA detentions and criminal proceedings in parallel, on the basis of the same or similar allegations.

Since 2019, Beyond PSA

And when it is not the PSA, there are other means (including legislations and procedures) that pose significant threat to free media across the country, but also especially in the Kashmir valley.

As per figures shared by the Home Ministry in the Lok Sabha, in 2020 alone, a total of 1,321 people were arrested under the UAPA. Of this the highest number were in Uttar Pradesh (361), followed closely by Jammu and Kashmir (346).

And when it isn't the legislations, the police can employ other intimidation tactics. According to a report published by the Human Rights Watch in February 2022:

"Since 2019, at least 35 journalists in Kashmir have faced police interrogation, raids, threats, physical assault, or fabricated criminal cases for their reporting."

In a report published in June, NBC news retold the ordeal of a Kashmiri photojournalist who had allegedly been beaten by demonstrators and security forces alike while covering protests in Kashmir but was still not deterred from “the work that he considered his calling.”

However, after the abrogation in 2019, everything changed for him.

“Journalists in Kashmir, India’s only Muslim-majority region, have faced an atmosphere of intimidation that is driving many of them out of the profession and keeping others from freely reporting what’s happening there to the world,” NBC reported.

The journalist who featured in the NBC story, now works as a tailor in a village in Kashmir.

Irfan Amin Malik, reportedly one of the first journalists to have been detained post abrogation of Article 370, recounted his detention in a piece for The Wire and wrote:

“I recalled his (my friend’s) repeated advice to me to leave journalism. He would always warn me that fair journalism is a tough job in a place like Kashmir. “Irfan, you are writing freely but remember free media does not exist in Kashmir,” he had said. Each time a report of mine would be published, I would remember this line.”

In Fahad Shah’s absence, Yash Raj Sharma is handling the editorial affairs at The Kashmir Walla. He also has an ongoing case against him (under sections 153 and 505 of the IPC) in connection with which he was recently able to secure anticipatory bail.

In April 2022, The New York Times quoted him as saying:

“Every time we hit the publish button, we are not sure if that particular story will land us in jail the next day...”