The Jammu and Kashmir Public Safety: A Gross Violation of the ICCPR

[Mohammad Zayaan is an undergraduate law student at Gujarat National Law University. He can be reached at zayaan44@icloud.com.]

Background

The Jammu and Kashmir Public Safety Act (‘PSA’) came into force in 1978, and authorises preventive detention of individuals for up to two years without trial. It is applicable in Indian-administered Jammu and Kashmir, a part of the disputed territory of Kashmir whose effective control lies with India. This law has been time and again used to detain people on vague and arbitrary grounds. Under this law, people are arrested on the apprehension that they may ‘likely’ commit an offence. A day before the special status of Jammu and Kashmir was revoked by the Indian Government in August 2019, hundreds of Kashmiris, including political leaders and former Chief Ministers of the State, were detained in jails across the country. No habeas corpus pleas were heard by the High Court for months, and these people continued to languish in detention. More recently, in May 2021 it was used to detain 21 people who had come out in a peaceful protest against Israel’s aggression in occupied Palestine. On 13 August 2021, an individual was charged under the PSA for shooting video of an accident in which an elderly woman was killed by an army truck.

They had committed no crime- it was only that the State was satisfied that they might commit one. This piece of legislation has often been criticised as being a ‘lawless law’, and it fails to oblige by India’s international obligations laid down in conventions such as the International Covenant on Civil and Political Rights (‘ICCPR’). India has ratified the ICCPR, and Article 51(c) of the Constitution of India puts an obligation on the Government to “foster respect for international law and treaty obligations in the dealings of organised peoples with one another”. This piece analyses the incompatibility of the PSA with the provisions of the ICCPR. It also argues that though India has made a reservation to Article 9 of the ICCPR for the purpose of preventive detentions, its acts undermine the object and purpose of the ICCPR and hence constitute a violation of its obligations.

Shortly after its independence, India enacted the Preventive Detention Act (‘PDA’) in 1950, continuing the colonial legacy of detaining individuals on suspicion and without reasonable cause. The PDA was challenged before the Supreme Court of India, which upheld its validity, paving way for the enactment of more laws of such nature. The PDA was followed by the Maintenance of Internal Security Act (‘MNSA’) in 1971, which was used during the emergency period in India to arbitrarily arrest opposition leaders and those who dissented against the dictatorial regime of Prime Minister Indira Gandhi. The Government further passed the National Security Act (‘NSA’) in 1980 to provide for preventive detentions on grounds such as maintenance of public order, in the interest of the security of the State, and maintenance of essential services and supplies.

The laws relating to preventive detention in India lie within the sole competence of the Union legislature, and only the Central Government has the power to bring such laws into force.  However, before the scrapping of the special status of Indian-administered Jammu and Kashmir, the State had its own Constitution (unlike the rest of the States within the Union of India), which empowered it to make laws regarding preventive detention. Therefore, in 1978 the State Legislature under the leadership of Sheikh Abdullah passed the PSA with an aim to ‘curb timber smuggling’. However, the real motive of passing such an Act became clear after it was used to silence dissent against Sheikh’s regime. Since Jammu and Kashmir was not an independent State, powers on matters with regard to its external affairs were to be exercised by the Union of India, as specified in the Schedule to the Instrument of Accession signed between India and Jammu and Kashmir in 1947. This also included implementation of treaties and agreements. Therefore, India and Jammu and Kashmir had parallel obligations under international law as all treaties entered into by the former were also binding on the latter. This background has become a bit irrelevant now that the special status of Jammu and Kashmir has been scrapped and the PSA has been deemed to be a law passed by the Indian Parliament, but it plays a central role in understanding the reservations made by India while ratifying the ICCPR.

India ratified the ICCPR in 1979, with a reservation to Article 9. Article 9 of the ICCPR reads:

“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”.

This has also been extended to administrative or preventive detentions, which can be made only in exceptional circumstances concerning threat to public security, and must be accompanied with procedural as well as substantive due process.

India, while ratifying the ICCPR, expressed a reservation to Article 9, stating that “it shall be so applied as to be in consonance with the provisions of clauses (3) to (7) of Article 22 of the Constitution of India”. Article 22 of India’s own Constitution authorizes preventive detentions in the country. It was hence in the backdrop of Article 22 of the Indian Constitution as well as the legislation passed under it that India decided to extend a reservation to Article 9 of the ICCPR.

However, a mere reservation would not entitle a country to go against the object and purpose of the treaty, which is to protect the inherent dignity of every individual. The United Nations Human Rights Council has also stated that the absence of a prohibition on reservations does not mean that any reservation is permitted, and that any discriminatory reservation made by a State is not valid. Therefore, a mere reservation would not allow India to go against the object and purpose of the ICCPR and detain individuals arbitrarily. The grounds under which such detentions can be carried out must not be exploited as are being currently done. The recent case of the arbitrary detention of 21 individuals for coming out in a peaceful protest undermines the essence of the object and purpose of the ICCPR, and so do the hundreds of detentions carried out in 2019.

Analysing the PSA Within the ICCPR

This section aims to test the compatibility of the provisions of the PSA against the provisions of the ICCPR. The aim of the ICCPR is to guarantee that the inherent dignity of an individual is protected at all costs, and it obligates States to “protect and preserve basic human rights… [and] “compel[ed] to take administrative, judicial, and legislative measures in order to protect the rights enshrined in the treaty and to provide an effective remedy.” The PSA goes the opposite way- it aims to take away the dignity of individuals by subjecting them to an arbitrary detention without trial. While the ICCPR puts an obligation on India to take necessary steps to repeal such laws, the PSA continues to be used in the same manner after more than 40 years of its enactment, without any substantial changes in the right direction.

The first and the most important section of the PSA is Section 8, which gives wide powers to the executive authorities to detain any individual who might act in a manner prejudicial to the security of the State or to public order. As long as the Government is satisfied that there is a likelihood of a breach of public order, it can take necessary steps to detain individuals for up to two years. This particular section of the PSA has been abused time and again by State Governments to detain protestors, journalists, students, and even the political opposition. This is aided by the vague nature of the definition of what constitutes as a breach of public order. Since almost anything and everything could fall under the bracket of this definition, it has become very easy for the executive to detain individuals on vague grounds. This violates Article 9(1) of the ICCPR which prohibits any arbitrary detention carried out in violation of a procedure established by law. Even though the PSA in itself can be considered to be a ‘procedure established by law’, it has been held that the meaning of ‘law’ in such a phrase does not only refer to a piece of legislation in isolation, but the same must be ‘just, fair, and reasonable’. The powers under Section 8 become a tool for executive tyranny against individuals who dissent against the Government. The powers under Section 8 were exercised in 2019 for the sole purpose of silencing any criticism of the Centre’s move to unilaterally de-operationalise Article 370 of the Indian Constitution, which conferred special status on the State of Jammu and Kashmir. Only opposition leaders and those who were in favour of having autonomy for the State were detained and jailed for indefinite periods.

Further, Section 13(1) of the PSA lays down that the grounds of detention have to be communicated to the detained individual, but Section 13(2) bars any such disclosure which would be against ‘public interest’. No definition of what would be ‘against public interest’ has been mentioned in the PSA itself, giving the executive unfettered power to disclose grounds of detention on their own whims and fancies. This violates Article 9(2) of the ICCPR, which obligates States to inform the detainees of their grounds of detention promptly. Due to such non-disclosure and absence of a trial, individuals often remain under detention for long periods of time, while being oblivious to the grounds of their detention. This also hinders them from preparing a defence to be used in the courts of law.

Article 9(5) of the ICCPR also puts an obligation on States to compensate individuals who have been victims of an unlawful arrest or detention. However, even though hundreds of detention orders are quashed by the Jammu and Kashmir High Court, there is hardly any compensation which is paid to the victims. Only a few individuals have received compensation till date.

Article 14 of the ICCPR guarantees a fair trial to all individuals, which also includes a speedy disposal of the case, under Article 14(c). However, in June 2020, the Bar Association of Jammu and Kashmir wrote a letter to the Chief Justice of India, stating that more than 99%  of the habeas corpus petitions filed after August 2019 were pending before the Jammu and Kashmir High Court, and most of these detentions were made under the PSA.

The procedural safeguard to the Advisory Board under Section 14 is also eyewash- more than 99% orders have been confirmed by the Board, and more than 80% of these orders have been quashed by the High Court. A lot of these orders have also been quashed due to procedural lapses such as non-disclosure of grounds of detention, and cases not being referred to the Advisory Board on time. Moreover, Section 16(5) prevents an individual from making a representation before the Advisory Board. This provision violates Article 14(3)(b) of the ICCPR which confers individuals the right to one’s own counsel.

Another element which surrounds the PSA is the phrase ‘subjective satisfaction’. While dismissing the plea of an individual detained under the PSA, a single judge bench of the Jammu and Kashmir High Court refused to go into the merits of detention, holding that as long as the Executive is satisfied, the Court cannot go into the merits of the case- essentially holding that the remedy of habeas corpus is futile for someone under an administrative detention. This also violates the fair trial rights of an individual guaranteed under Article 14 of the ICCPR, and the bare minimum requirement of holding a proper trial (which, although is itself barred under the PSA, and remedies are sought through habeas corpus petitions). When the same case went for review under a division bench of the same Court, the judgment required the individual to prove that he had ‘shunned a particular ideology’. This part of the judgment was in contravention to Article 19 of the ICCPR, which guarantees freedom of opinion to individuals without any interference from the State.

Hundreds of Kashmiris are still languishing in jails while facing charges under the PSA. These charges are not based on substantive content or reasonable cause- but a mere suspicion. The access to justice is further hurdled by the lack of any procedural or substantive safeguards, and an indifferent judiciary which aids such detentions either directly or indirectly.

Conclusion

The PSA is in clear contravention to provisions of the ICCPR, and fails to protect and uphold the inherent dignity of an individual. By authorising an administrative detention under these stringent provisions, it violates the right to fair trial, right against arbitrary detentions, and other procedural as well as substantive safeguards laid down in the ICCPR. Since India has ratified the ICCPR, it cannot act in contravention to the object and purpose of the treaty despite making reservations. Therefore, it becomes imperative for it to revisit the PSA and repeal it in its entirety to prevent an abuse of the process of law. The recent detentions of individuals protesting for Palestine or of the individual taking a video of an accident caused by the army are completely arbitrary and tend to undermine the object and purpose of the ICCPR, which gives liberty, dignity, and the rule of law the utmost importance.