‘Lawless law’: How the Public Safety Act has become a tool of repression in Kashmir

The officials issuing detention orders under the Public Safety Act in Jammu and Kashmir are mere rubber stamps. This is a common refrain among rights activists and lawyers fighting PSA cases. They argue that this law has been misused by the state ever since it received the governor’s assent on April 8, 1978.

Former Chief Minister Farooq Abdullah of the National Conference is the latest high-profile victim of the PSA. He was booked under the law after a month and a half of being detained in his house in Srinagar. Incidentally, it was his father, Sheikh Abdullah, who introduced the PSA.

The PSA is a preventive detention law that allows the state to detain a person for up to two years without trial. 

A lawyer in Srinagar who has been fighting for those jailed under the PSA explains how the law is wantonly applied: the district police chief prepares a dossier on whoever they want detained and use it to get the district magistrate to sign the detention order. “There is complete non-application of mind,” he adds, speaking on the condition of anonymity. “Only a few of us are fighting PSA cases now. Many of the lawyers who fought such cases in 2016 feel they are under the scanner now.”

Nazir Ahmed Ronga, former president of the Kashmir High Court Bar Association, was arrested on August 4, a day before the Narendra Modi government abrogated Article 370 of the Indian constitution which granted a modicum of autonomy to Jammu and Kashmir, and bifurcated the state into two Union Territories. 

The order for Ronga’s detention – based on a dossier submitted to the district magistrate on August 13 – accuses him of being affiliated with Mirwaiz Umar Farooq’s faction of the Hurriyat Conference. “Your aim and objective is to disturb maintenance of public order and to create an atmosphere conducive to propagation of secessionist ideology,” the order reads. It goes on to suggest that Ronga was influenced by the separatists’ ideology and was motivated to join their camp. “Being a lawyer by profession, you have drastic ideology as you were looking after criminal cases which were sub judice”, the order informs Ronga, adding that this gave him a “prominent position” in the separatist camp.

According to the detention order, Ronga has been instrumental in organising strikes, protest marches, and generally “disturbing the peace” in Kashmir. He is specifically credited with “motivating” the youth. “Your capacity can be gauged from the fact that you were able to convince your electorate to come out and vote in huge numbers during poll boycotts,” the order claims.

Going through several PSA orders shows a pattern in the kind of charges slapped on the detainees. Indulging in “illegal activities like stone-pelting”, being “highly prejudicial to peace and public order”, being affiliated with separatist groups or advocating secession of Jammu and Kashmir from India are the most common grounds for detention.

The charges are often patently absurd. So it’s no surprise that most of the PSA cases are eventually quashed. It doesn’t seem to deter the authorities, however. Take this example: if the police are to be believed, Mohammed Aquib Bhat alias Billi, a resident of Syedpora in Old Srinagar’s Nowhata area, has been a militant from the moment of his birth. He is one of the at least 290 people who have been booked under the draconian law since August 5.

On August 16, the Srinagar district magistrate signed the order for Billi’s detention under the PSA. According to the police dossier on the basis of which the order was passed, Billi is a stone-pelter with “a long history of having remained affiliated with various activities which are prejudicial to the maintenance of Public Order”.

The dossier claims that in the early 1990s, Billi was involved in “subversive activities and in a short span of time assumed high position before ANEs” – anti-national elements – and “implemented all illegal programmes given either by secessionists or any other militant organisation operating in the state” with the intent of “seceding the state of J&K from the Union of India”.

Here’s the catch: the dossier states that Billi is 26. This means he was born in 1993. So, he was not even born or still in the cradle when he was supposedly involved in “subversive activities” in the early 90s. 

Billi first came to the police’s notice “for indulging in various activities which created a law and order problem” in Srinagar, the detention order claims. “You have been found to be one of the main limbs that implements such programmes like enforcing strikes,” it adds. “It has been further observed that you initiate your activities from downtown area of the city which subsequently spreads to the whole of the valley.” 

The dossier cites three First Information Reports that name Billi, the earliest filed in 2009 under provision of the now defunct Ranbir Penal Code.

In the past, the reckless use of the PSA has drawn sharp criticism from human rights organisations and even the state high court through habeas corpus judgements.

Amnesty International has described the PSA as a “lawless law”. Amnesty International India, in a June 2019 report titled “Tyranny of A ‘Lawless Law’: Detention without Charge or Trial under the J&K PSA”, indicates a pattern of the authorities using the PSA in a manner that further violates human rights. Those jailed under the law, including minors, are routinely subjected to “revolving-door detentions”.

Amnesty’s report even pulls up the Jammu and Kashmir High Court, noting that even though it has routinely quashed detention orders that did not comply with procedure, the court has done little to tackle the impunity enjoyed by the authorities. “This system has contributed to the already widespread fear and alienation felt by the people living in the Kashmir Valley,” the report concludes.

And Billi’s case is not unique.

On August 9, the Srinagar district magistrate authorised Zahid Farooq Khan’s detention under the PSA for the second time. Khan, from Nowhatta in Srinagar, was first jailed under the law in 2016 but was released on the high court’s order.

According to the police’s dossier on him, Khan first appeared in their crosshairs nearly 10 years ago when he was allegedly motivated “to indulge in illegal activities like stone-pelting”. In spite of being arrested at the time, the dossier claims, Khan not only “did not give up” and remained “hellbent” on continuing with his activities, he even motivated other youth to do the same. The dossier, though, only cites an FIR filed against him in 2016 – when the killing of the militant leader Burhan Wani sparked mass protests across the valley – and not 10 years ago.

That’s not all. Stone-pelting is not the main reason for Khan’s detention. The dossier states that Khan needs to be jailed to prevent him from disrupting the law and order situation which in turn would dissuade the public from taking part in the “forthcoming” parliamentary election. The police appear to have forgotten that the parliamentary election ended in May, three months before Khan’s arrest.

Billu and Khan have both challenged their arrests in the high court. Since August 5, at least 35 people booked under the PSA have moved the court against their detention. But the justice delivery system is stuck.

One reason is that postal services remain suspended in the valley. “All the notices issued to the state are lying in the registrar’s office since they cannot be served at this time,” a lawyer fighting a clutch of PSA cases explains. The lawyer is originally from Srinagar but now lives in another city. He asked not to be named or for his city of residence to be disclosed. “There is an unofficial emergency in the valley.”

Another reason is the lack of judicial urgency. “The state is not filing a reply,” explains the lawyer Shah Faisal. “They always seek time and the court complies. Since August 5, not a single detention order has been quashed by the high court.”

Faisal, along with fellow Human Rights Law Network advocate Ehsan Javaid, is representing Billi and Khan, among other detainees.

Since Kashmir was put under a security lockdown and communications blackout on August 5, the security agencies have relied on FIRs filed as far back as 2016 to justify the detention of several youth. “Mass amnesty was given to the youth who had participated in incidents of stone-pelting in 2016. Many of those same young men have been arrested now based on FIRs filed three years ago and in which they had been pardoned,” says Adil Pandit, a lawyer based in Srinagar who has been vocal about the misuse of the PSA.

Sahil Zahoor Chunka, a resident of Syedpora in Nowhatta, is one of them. A school dropout, according to the police’s dossier on him, Chunka was “influenced by secessionist ideology” while working as a salesman near Srinagar’s Jamia Masjid. “The subject by his activities has become a forefront member of disgruntled elements for implementing their programmes on ground, be it hartal and bandh calls given by secessionist elements or other programmes of anti-national activities,” the dossier reads.

It adds that Chunka with “other anti-national elements has formed a gang with aim and object to disturb peace, besides paving a way to secessionist elements to play with the sentiments of a common man for creating large-scale law and order problems”.

Shafqat Nazir, another lawyer contesting illegal arrests, claims the grounds for detention under the PSA are “readymade”, and the dossiers and the detention orders are prepared without much thought. The police have template dossiers which they “tweak here and there”, he alleges.

“People of Kashmir have lost faith in everything that represents the Indian constitution,” Nazir argues. “Courts are considered to be the tools of the ruling party. The law is not being applied in this land. There is complete breakdown of the law and order. There is a virtual emergency here. The detentions are not preventive anymore but punitive.”

Nazir’s sentiment is shared by the father of two young men who were wounded when the security forces fired pellets into a protest march in Srinagar on August 9. Asked if he would move the courts for compensation, their father scoffs, “By god’s grace, I can afford their treatment.” 

One of his sons chips in, “We had to lie about our names and addresses in the hospital. We went to the hospital only because the injuries were serious and they couldn’t be treated at home. The high court is an extension of the ruling dispensation in Delhi and we do not have any faith in it.”

Javaid, the lawyer, concurs. “It is an uncommon trend for Kashmiri families to seek justice in the high court,” he explains. “They see the courts as a symbol of the Indian constitution and an extended tool of the ruling party at the Centre.” 

He says the families of several PSA detainees have even complained of being harassed by the police for seeking judicial recourse. 

“The situation in Kashmir is far from normal,” Javaid adds. “It is heartbreaking to see a small kid looking for his father every night before going to bed. The kid probably doesn’t know where his father is, or if he will ever return.”

Ritika Jain is a freelance journalist.