Ahmed Ali Fayyaz SRINAGAR: When the Jammu and Kashmir Public Safety Act (PSA) was passed in the State Legislature in April 1978, many in the opposition either ignored it or offered merely some feeble resistance. But Chief Minister Sheikh Mohammad Abdullah was fiercely confronted by then Janata Party MLA Abdul Gani Lone. Lone debunked Sheikh’s assertion that the ‘draconian law’ would be invoked only against the timber smugglers. Ironically, forty-one-years later, none other than the government of the Janata Party’s descendant, BJP, is ruling at the Centre with the President’s rule in Jammu and Kashmir and the Governor’s administration on Sunday, September 16, has detained Sheikh’s successor son, Farooq Abdullah, under PSA. Eighty-three-year-old Farooq, has been J&K’s Chief Minister in 1982-84, 1987-90 and 1996-2002. Several times he has served as a member of the Indian Parliament-Lok Sabha as well as Rajya Sabha-while also functioning for a term as a union Cabinet Minister. Even as Farooq has not been described as a “threat to security and sovereignty of India”, and the main ground of his detention in the PSA order is the State’s apprehension that his activities could disturb the public order, he has been confined under the same law that has been slapped on scores of the separatist leaders, lawyers and businessmen in August and hundreds of terrorists, stone-pelters and separatists in the past.
Farooq has ‘tremendous potential’ to create public disorder: PSA order Srinagar: Statements mobilising people against the state and the “tremendous potential” to create public disorder in the Valley are among the charges listed against former Jammu and Kashmir chief minister Farooq Abdullah, who has been booked under the Public Safety Act. The 81-year-old Lok Sabha MP from Srinagar, under detention since August 5 when the Centre revoked the state’s special status, has also been accused of making speeches glorifying terrorists and separatists. The PSA order against Abdullah, accessed by PTI, cites seven instances from 2016 onwards when he spoke in favour of the separatist Hurriyat Conference and terror groups. Abdullah, the first chief minister to be booked under the stringent PSA, was arrested on Monday under the PSA and his Gupkar Road residence was declared as a jail. The National Conference chairman and three-term chief minister has been booked under the ‘public order’ provision of the PSA under which a person can be kept in jail from three to six months without a trial, officials said. On repealing of Articles 370 and 35-A of the Constitution, which provided special status to people of the state on jobs and residency, the PSA order accuses Abdullah of issuing statements aimed at mobilising people against the state. It says he could have debated the issue rather than threaten the integrity of the country and glorify terrorism. The order also accuses him of propagating “secessionist ideology” besides posing a threat to life and liberty of the people. Abdullah, the order states, “has tremendous potential for creating an environment of public disorder within the district (Srinagar) and other parts of the Valley”. It accuses him of being a person seen as fanning the emotions of general masses against the country. The order, which states that Abdullah’s residence “G-40 Gupkar Road” has been declared a subsidiary jail, has also been accused by the state administration of issuing statements in conflict with law that were aimed at disturbing public order. The PSA has two sections — ‘public order’ and ‘threat to security of the state’. The former allows detention without trial for three to six months and the latter for two years. The PSA is applicable only in Jammu and Kashmir. Elsewhere in the country, the equivalent law is the National Security Act (NSA). Separatists and Abdullah’s political opponents in the Valley have termed him a vehement supporter of state’s accession with India. He was also criticised last year for raising the slogan, ‘Bharat Mata Ki Jai’, during a condolence meeting for former prime minister Atal Bihari Vajpayee.
The decision to detain Farooq under PSA-for the first time a former Chief Minister or an MP in India-was sequel to the Tamil Nadu politician Vaiko’s petition seeking reasons and grounds of the National Conference (NC) patron’s confinement at his home in Srinagar since August 5. On that eventful day, Articles 370 and 35A were scrapped and J&K broken into two Union Territories (UTs). Apparently the government had to create some justification for the unprecedented detention of J&K’s highest profile mainstream politician. A former Law Secretary in a conversation with STATE TIMES recalled how one MLA from the opposition, around the year 2010, brought in an amendment seeking repeal of PSA’s section 10. According to a provision, courts had no power to quash a PSA detention order even if none of the five stipulated grounds was relevant. Omar Abdullah’s NC-Congress coalition defeated the amendment, saying that it would be a boon for terrorists and anti-national elements. Subsequently though section 10(A) was incorporated. It says that courts would uphold the detention even if only one of the five grounds was valid. Even as the Chief Justice of the Supreme Court of India, Justice Ranjan Gogoi, would be waiting for an explanation from the Chief Justice of J&K High Court, Justice Gita Mittal, to learn whether the petitioners had any difficulty in approaching the courts in Srinagar, a bunch of petitions, including that of Vaiko’s, could end after the government’s declaration that Farooq had been detained under PSA. On Farooq’s behalf, two petitions-one by his daughter and son-in-law and another jointly by Lok Sabha members Hasnain Masoodi and Mohammad Akbar Lone, had been already filed in J&K High Court. As per an order in one petition, Farooq’s daughter was allowed to meet her father and provide him with medicines. Another order permitted Masoodi and Lone to meet their party chief. Masoodi, a former judge of J&K High Court, and Lone, an advocate, were cautiously proceeding on the legal course, knowing well that their optics had a limit. For them, two factors clear enough: That the habeas corpus petitions filed on behalf of the fresh PSA detainees like senior advocates Mian Abdul Qayoom and Nazir Ahmad Ronga and businessmen Mubeen Shah and Yasin Khan, were nowhere in sight to fetch them any relief; and, that courts had very limited powers to quash such detentions for anything other than technical grounds and procedural infirmities.
A former Advocate General explained that most of the PSA orders in the past had failed only for technical deficiencies or procedural infirmities as the domain of satisfaction lay essentially with the District Magistrate. “The powers of the courts are very much circumscribed in the PSA detentions”, he asserted.
According to this senior lawyer, Supreme Court has jurisdiction in habeas corpus petitions under Article 32 as it involves a guaranteed fundamental right but in most of the cases, petitioners were asked to approach the J&K High Court which had ‘extraordinary jurisdiction’ under Article 226. He said that previously the writ of habeas corpus in J&K could be filed under section 103 of J&K Constitution (read with Article 226) but now on it would have to be filed only under Article 226 of the Constitution of India.
J&K Reorganisation Act, passed by the Parliament in August, makes it clear that the PSA would continue to remain in force in the newly created UT.
As per the procedure, a District Superintendent of Police makes a dossier which is upheld or rejected by the District Magistrate. If the DM is satisfied over the grounds of detention, he issues the order of detention which stands subject to approval of the State government within 12 days.
Grounds of detentions have to be communicated to the detainee within 5 to 10 days. Thereafter, the detainee can file a representation under clause 5 of Article 22 before the State Advisory Board which rejects or upholds the same with a reference to the State Home Secretary. It is mandatory for the government to accept the board’s recommendation. Entire procedure has to be completed within three months.
In certain cases, detainees straightaway approach the High Court, pleading that the grounds of detention were not conveyed/read out to them as per the procedure or that a formality had not been completed within the stipulated timeframe.
Even as politicians in opposition and human rights activists have been calling PSA a ‘draconian law’, Government has invariably maintained that there were “adequate checks and balances” in the legislation which, with certain changes, is a State variant of the National Security Act. Smugglers and FERA violators are booked under the same law.
In J&K, power to detain separatists, terrorists and anybody seen as a threat to the public order lies with District Magistrate but in case of timber and drug smugglers, the order of detention under PSA is issued by Divisional Commissioner.
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