Detention quashed, but several PSA prisoners languish in jail over procedural delays

In 2022, Rameez* had big plans. He wanted to finish his law course and get married to the “love of his life”, until he was arrested in June that year under the Public Safety Act, 1978, as his activities were “highly prejudicial to the maintenance of public order of the state”. 

Lodged in a Kashmir prison, Rameez was subsequently sent to jail in Uttar Pradesh. However, last year, the Jammu and Kashmir High Court quashed his detention and ordered his release provided he was not required in any other case. The court observed that the detaining authority had been “unmindful” considering that he was arrested in FIRs lodged in 2010 in which he had already received bail, without any additional charges. 

However, despite the order, it took 45 days for Rameez to walk out of prison. 

Jail authorities required clearance letters from the administration stating that he was not needed in another case – from the district magistrate who had ordered his detention and J&K home department. 

“To obtain these clearances, for 45 days, my 56-year-old father was knocking at the doors of officials,” said Rameez. 

But he isn’t the only such prisoner who has been held back in prison for prolonged periods for want of such letters despite the detention being quashed by the judiciary.

Two senior officials at J&K Home Department, a district magistrate in Kashmir and jail authorities of Varanasi Central Jail and Agra Central Jail in Uttar Pradesh told Newslaundry that prisons across India wait for such clearances in PSA cases pertaining to Kashmiri prisoners even after court orders.

But the letters are just a “formality” and there is no legal provision that makes them mandatory, claimed the two top officials of the J&K home department.

Newslaundry could not independently verify whether it is mandatory for jails to wait for such letters and whether there is a timeline for the issuance of the same.

Challenge in court?

The case involving Mansoor*, who continues to stay in prison despite a court quashing his detention in 2022, is the only reported incident wherein a detainee has challenged the delay in such letters in court.

When he wasn’t released from a jail in Uttar Pradesh despite a court order, his family approached the J&K High Court seeking “compensation for his continuing illegal custody amounting to wrongful confinement”. The court noted that the petition presented a “very disturbing scenario” and asked the district magistrate to “justify his illegal detention”. The court also said there was no question of keeping Mansoor in jail since there is no other PSA detention order.

But even if there was no delay in the letters after the PSA charge, Mansoor would have remained in jail – like he does in Kashmir in another case lodged under the UAPA.

Meanwhile, at least five lawyers from the J&K High Court told Newslaundry that it takes anywhere between 30 and 90 days for PSA detainees to walk out of jail after a court order.

“These days, I tell my clients it is easier to get quashing orders from the court than clearance letters from the administration. This is illegal detention and contempt of court. Because if the court says that you have to release that person then you have to release him unless he is required in any other case,” said an advocate.

“Families don’t want to file any contempt petition because they have accepted this is a new norm. They keep requesting and begging the administration. They keep approaching the police officers who tell them that they will be given clearances in a couple of months,” claimed another lawyer.

Another lawyer said the reason why families don’t challenge the delay in court is due to “fear” of the government.

International rights organisations and legal experts have repeatedly demanded to abolish the PSA under which a person can be detained without trial for up to two years. Initially used to detain those accused of militant, separatist and stone-pelting activities, it has been deployed in recent years against several mainstream politicians and journalists too.

In 2015, an RTI response had suggested that 16,329 persons had been detained under the law since 1988, and nearly 95 percent of them were from Kashmir.

According to another response to an RTI application filed last year by the NGO J&K RTI Movement, between  August 2019 and July 2023, as many as 1,570 petitions were filed against PSA detention orders, of which 900 were quashed by the J&K High Court. And the J&K home department, responding to another RTI plea by the NGO in 2018, had admitted that no rules or standard operating procedures had been formed under the PSA during the four decades of its existence.

No timeline?

Sakshi Chaudhary, deputy jailor at Agra Central Jail, said they ask for both soft and hard copies of the clearance letters from the district magistrate and the home department. “There is no definite time of release of these prisoners. It depends from case to case. Sometimes we keep sending letters to the J&K administration asking them to send clearance letters for six months.”

Varanasi Central Jail superintendent Radha Krishan said prisoners can’t be released if letters are not received for “a month, two months or even four months”. “For us, till that time, the high court’s orders are suspended. At the end of the day, it is their responsibility to execute the court’s order on time. Because there are no delays at our end.”

Two senior officials at the J&K Home Department said that this is “not a laid down procedure” but just a “formality” to ensure that these prisoners are not involved in any other case. 

One of these officials said, “We are just following the court’s direction to ensure that they are not required in any other case. Because these are terrorist cases, we don’t want them to be released by mistake. Then there would be major repercussions. The procedure of clearances is not out in the public domain because it is a matter of national security. And yes, there would be some cases in which the release would have taken months.”

However, a senior advocate said there “is only one law, that if the court says the prisoner has to be released then he has to be released”. “No law says that they require clearances from the administration even after court’s order. The High Court does not mention in its order that they need clearance letters to be released. And because the families are not aware of these, it is putting them at the mercy of the administration.”

Jammu and Kashmir had amended the PSA in August 2018 to allow prisoners booked under the law to be lodged in prisons in states across India.

According to a government response in Rajya Sabha in 2019, there are 234 Kashmiri prisoners in UP prisons and 27 in Haryana jails. But Newslaundry could not verify how many of these were imprisoned under the PSA. 

Newslaundry has sent questionnaires to the Directors General of Prisons in UP and Haryana to share the figures. This report will be updated if a response is received.

Impact on families

Meanwhile, for families of several PSA detainees, the need for letters means they have to run from pillar to post for approvals.

Consider the example of Farhan*, who was moved to Uttar Pradesh months after he was jailed in a Kashmir district under the PSA in 2021. Quashing his detention in 2022, the court said the grounds on which he was detained were “vague” and “lacked in material particulars”.

But despite the court order, it took him over 45 days to walk out of prison. His friend told Newslaundry that Farhan’s family tried to meet senior officials daily to seek clearance. 

“After 15 days of the court order, the jail superintendent also tried. He called the district magistrate and senior superintendent to send clearances so that I can be released,” Farhan claimed.

There are two more recent cases, involving Adnan* and Musaib*, who continue to be in jail in Uttar Pradesh despite their detention being quashed by court in the first half of December.

“Their families call me everyday that they have not got clearances and they are worried. They have met the district magistrate and official at the home department several times,” claimed their lawyer.

Newslaundry has sent a questionnaire to the J&K Home Department. This report will be updated if a response is received.

Newslaundry reached out to district magistrates of four districts – Baramulla, Srinagar, Shopian, and Pulwama – from where cases of delays have been mentioned in this report. This report will be updated if a response is received. 

*Names have been changed to protect identity.

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