Farooq Abdullah’s PSA Detention is Shocking, But is it Unexpected?

The PSA has been misused for arbitrary, preventive detentions in Jammu & Kashmir for decades.

The PSA is a law that was originally enacted in 1978 to deal with timber smuggling.

(Photo: Altered by The Quint)

Video editors: Ashutosh Bhardwaj and Sandeep Suman

• An 81-year-old former chief minister.
• A sitting Member of Parliament.
• A friend and ally of Atal Bihari Vajpayee.
• A member of the 1994 cross-party delegation that thwarted a Pakistani attempt to censure India over the Kashmir issue.

And now, a threat to “public order”.

That’s right, Farooq Abdullah, perhaps the most well-known face of Kashmiri politics, has been detained in Srinagar under the Jammu & Kashmir Public Safety Act, commonly known as the PSA.

The PSA is a law that was originally enacted in 1978 to deal with timber smuggling, but has come to be the preventive detention law of choice in J&K over the years.

Under it, people who the authorities view as a threat to public order can be detained without trial for a period of one year, while those who they view as threats to the security of the state, can be locked up for up to two years without having committed any offence.

How Events Unfolded

But how on earth did we get here?

The genuine answer: Nobody really seems to have thought this through.

On 6 August, Home Minister Amit Shah insisted multiple times on the floor of Parliament that Farooq Abdullah had NOT been detained or put under house arrest or anything of the sort.

Abdullah contradicted Shah on the very same day, and said he had been placed under house arrest.

And yet, for over a month after that, nothing.

On 11 September, Tamil Nadu Rajya Sabha MP Vaiko filed a habeas corpus petition in the Supreme Court. He claimed that Abdullah had been put in “wrongful detention without any authority of law.”

When the petition came up for hearing on 16 September, Vaiko’s lawyers pointed out that they did not know why Abdullah had been detained or even under what law this had been done.

When asked by the judges, Solicitor General Tushar Mehta could not even confirm whether Abdullah had been detained, saying he needed to “seek instructions” from the J&K government.

Which is interesting since the order for Abdullah’s detention under the PSA had reportedly been passed a day previously! , with an Advisory Board under the PSA confirming it.

National Conference leader Mohammad Akbar Lone has said they will challenge the PSA order as there is no justification for it to be used against Abdullah. Challenges have also been filed against his detention in the J&K High Court as well.

The Supreme Court will take up the matter again on 30 September – a full two weeks later – after the government finally puts a response together about why Abdullah has been detained.

Why is Detaining Abdullah Under the PSA Controversial?

So, what are the concerns that this whole saga raises?

At the outset, it’s still unclear why slapping the PSA on someone like Farooq Abdullah, who hadn’t committed any crime whatsoever.

Here is a man who has stood for India time and time again, for decades, and hardly seems the type to instigate trouble, even after the Modi government’s actions in Kashmir since 5 August.

But what is far more interesting is how his detention highlights some serious flaws with the process being followed to impinge on the freedom of not just him, but thousands of Kashmiri people.

1. First, if the PSA order was only passed a day previously, on what basis had Abdullah been under house arrest till then?
2. Second, if the decision to slap the PSA on Abdullah was only made a day previously, how had an Advisory Board already confirmed this order? That too, without giving Abdullah a chance to argue against it, as he has a right to under the law?
3. Third, why was this order under the PSA passed suddenly, just before his case was to be heard in the Supreme Court? If Abdullah were genuinely a threat to public order, why did it take so long for this decision to be made?

The answers to these questions lie in the way in which the PSA and other laws have been used and misused for decades in Jammu & Kashmir. Including, ironically, under the rule of both Farooq Abdullah and his son Omar.

Abdullah’s Detention Not a Surprise After Decades of Misuse of PSA

In 1996, the Supreme Court had said that the mindless usage of preventive detention under the PSA would render it a “lawless law”.

The UN Office of the High Commissioner for Human Rights has condemned the arbitrary detentions in J&K under the PSA.

An RTI under the J&K RTI Act revealed that while the Advisory Boards set up to review detention orders under the PSA confirmed over 99 percent of them, 81 percent of the detention orders challenged in the J&K High Court are quashed.

According to Amnesty International, in about 80 percent of these quashings, one of the grounds has been that the detained was not informed of their rights.

Other grounds include vagueness, repetitive accusations and non-application of mind.

This ties into what The Quint has been told by lawyers who have worked on these cases, who say that basic procedures which are supposed to be followed under the PSA are rarely followed.

And that PSA dossiers are created at the last minute only if the courts are actually moved to challenge a person’s detention.

We were told that for years, Kashmiris have been detained for weeks at a time in the absence of any formal orders, often using ‘open FIRs’.

When bothered to do the paperwork, the police use provisions of the J&K Code of Criminal Procedure or CrPC – broadly the same as the pan-India one – like sections 107 and 151 to detain persons by saying they’re a risk to public order.

The CrPC, for instance, was the basis for detaining former IAS officer Shah Faesal, even though the procedural requirements for this were also not followed. Abdullah’s house arrest till recently was probably on the same lines prior to the invocation of the PSA.

But when the government realised this may not play well when trying to explain to the Supreme Court how they’d detained Abdullah and how a PSA order magically appeared.

Abdullah’s case highlights the brazen lack of justifications for such detentions – something which has only gotten worse with the government’s attempt to silence everyone with a voice in the Valley since 5 August.

It is also worrying that even in a high-profile political cases like his, the government appears to be playing fast and loose with procedure – think what that means for regular Kashmiris?