Misuse, Abuse Of Public Safety Act 

Public Safety Act (PSA) 1978 is much maligned in Kashmir. It is regarded by the populace of Kashmir Valley as the most controversial and contested law since the inception of armed insurgency in the 1990s.

There has been public outcry and judicial reprimand on many occasions against the operation of this controversial law in J&K to “contain anti-national and terrorism-related activities in Kashmir.” For three decades, PSA has been one of the focal points in the political agenda of most of the Kashmir- based political parties.

Kashmir has also seen many upheavals regarding the charge of PSA on what is popularly called as “flimsy grounds”.

PSA was primarily by the Jammu and Kashmir Legislative Assembly to curb the abuse of forest resources and to ensure the hand of law against the forest smugglers. It was not easy for those charged under PSA to obtain bail. Since the beginning, PSA has been slapped on thousands for their alleged involvement in terrorism-related activities. There have been allegations against the government, irrespective of the regime, of misusing and even abusing the Act by “falsely implicating innocent” people. The blame game has been there for three decades. Every political party and leader would blame the other for falsely implicating people under PSA. The debate around PSA has been exclusively political. Most parties have seen this issue as the political feeder to gain the sympathy of common masses. This was a ritual for political parties in J&K, wherein the ruling formation in Jammu and Kashmir had to face a strong opposition on the issue of PSA. Allegations leveled at each other by the political class have mostly been general accusatory, not case specific.

KASHMIR CENTRAL deems it appropriate to raise certain fundamental questions regarding the invocation of PSA against the accused persons by the law-enforcement agencies, particularly the Jammu and Kashmir Police.

Statistics apart, the fundamental cause of concern in the imposition of the PSA is the stage of preparation of the dossiers. A dossier is a collection of papers containing detailed information about a person, an event or a subject. Therefore it merits that the dossier is prepared by a person of prudence and professional competence.

The casual and unprofessional way of JK Police in preparing the dossiers and listing of charges against the accused leads to implication of innocent individuals. This later has far-reaching ramifications for the society. There have been innumerous allegations from the public about the misuse and abuse of PSA by the political regimes of the erstwhile state. It is understood that those booked under PSA and their families will refute the allegations. Equally, they have every right to defend themselves. In most cases, the dossiers are prepared in a very slipshod manner. The mechanism to re-verify the facts beyond a reasonable doubt is not often exercised. This compromises on the rightful implementation of this law.

After the charges under PSA are framed in the dossier by the investigating agency, the contents is approved and endorsed by the District Magistrate. Since 1990, thousands have been slapped with PSA. There is enough evidence to suggest that because the casual approach of the investigating agency, hardcore criminals and those actually involved in terrorism-related activities get away, and the innocents are implicated and victimized. This happened because of the lackluster approach of the investigating agencies.

The edifice of the Indian criminal justice administration system is based on certain fundamental maxims and beliefs. These maxims have been indoctrinated in the system to such depth that they have led to the emergence of various presumptions which envelop to a criminal trial even before it initiates. One of these is the presumption of innocence of the accused, requirement of proof beyond reasonable doubt in order to establish the guilt of the accused etc.

“Let Hundred Guilty Be Acquitted But One Innocent Should Not Be Convicted”.

There are certain occasions when the law enforcement agencies are under tremendous pressure from the political bosses to act swiftly against trouble mongers. But false implications erode the trust of the common people in the democratic institutions.

The Jammu & Kashmir Public Safety Act 1978 is a preventive detention law, under which a person is taken into custody to prevent him or her from acting in any manner that is prejudicial to the security of the state or the maintenance of public order. PSA permits administrative detention for up to two years “in the case of a person

acting in any manner prejudicial to the security of the state”, and for up to a year where “any person is acting in any manner prejudicial to the maintenance of public order”. A detention order under the PSA is issued by the District Magistrate. After the amendments were made to PSA in 2012, the detention of a person below the age of 18 was strictly prohibited under this Act. Public Safety Act is a very powerful tool to curb anti-national elements. The Supreme Court, in a catena of judgments, has held that the District Magistrate or any other qualified official as per the Act is under legal obligation to analyze all the circumstances of a case. If a person already under police custody is detained under the Public Safety Act, the officer has to record compelling reasons for such detention. If a person is detained multiple times under PSA, the officer must produce fresh facts while passing the subsequent detention order.

Take the instance of Home Minister Amit Shah’s last visit to Srinagar on October 23, 2021. Shortly before his arrival, a police inspector of the CID wing was killed by terrorists in Nowgam in the city’s outskirts. This was followed by the killing of ML Bindroo, the renowned medicate in the heart of the city. Law enforcement agencies were under tremendous pressure to act against the terror modules and OGWs. The police in each district started picking up hundreds of so-called suspects only for numbers. Dossiers were prepared in haste overnight. Reports say that the district magistrates signed the dossiers without proper assessment and application of legal prudence, without going into the merits of the case and raising questions. This resulted in the detention of hundreds of youth from across the valley either under PSA or UAPA (Unlawul Activities Prevention Act). It is learnt that none of the district magistrates returned a single dossier to the police for further queries. There was public outcry against such random arrests. The cries reached the Home Minister’s ears. It is reliably learnt that in a high-level meeting of security officials at Raj Bhawan in the evening of October 23, the Home Minister expressed his anguish over the carelessness of both the police and the civil administration. It used to be the same even at the time of elected governments. Those at the helm of affairs would express pain at the indiscriminate slapping of PSA on poor youth.

According to reliable sources, the Home Minister strongly warned the officers not to touch the innocents. LG Manoj Sinha too expressed his dismay. He directed his officers to refrain from falsely implicating innocents and instead look for the real

culprits.

Both the Home Minister and the LG received inputs that the majority of those picked up by the police across Kashmir valley and charged under PSA were those against whom cases had earlier been registered in their respective police stations. According to sources, the Home Minister and the LG were told that the district police officers have lost touch with the ground, and that human intelligence does not flow well. The Home Minister and the LG were also informed that when the police officers face pressure after some volatile case, they randomly book men who had some kind of contact with the terrorist groups in the past. Such people are targeted even though they may have no present connect with any terror group or OGWs. The HM and the LG were informed that the District Magistrates by and large are to be blamed for this carelessness and for succumbing to the pressure mounted by the Police.

As per law, it is imperative for each signing authority to study the dossiers carefully and raise questions of law so as to satisfy the collective conscious beyond reasonable doubt.

After the culmination of the Home Minister’s visit, Principal Secretary to LG  Niteshwar Kumar told this correspondent that it was criminal on the part of the district magistrates to not apply mind and wisdom while deciding about the merits of each dossier presented to them by the District Police. He emphasized that there were dual points of concern here. One, innocents or criminals of low severity got booked under PSA on flimsy grounds. Second, there were several instances where hardcore terrorists got away because the investigating agencies did not do the proper homework. It was observed that in many dossiers, the Investigating Officer replicates the dossier prepared before for someone, changes its name to the current accused, and presents the case for further processing.

This practice of replicating dossiers is not restricted to Kashmir. There have been multiple reports by leading media houses in print and television media of mindless replication of dossiers by the Investigating Officer.