Zayaan Rouf[i]

Background

The Jammu and Kashmir Public Safety Act came into force in 1978 and authorises preventive detention of individuals for up to two years without trial. It is operative in the disputed region of Jammu and Kashmir and has been time and again used to detain people on vague and arbitrary grounds. Under this law, people are arrested on the apprehension that they may ‘likely’ commit an offence. A day before the special status of J&K was revoked by the Indian Government in August 2019, hundreds of Kashmiris, including political leaders and former Chief Ministers of the State, were detained in jails across the country. No habeas corpus pleas were heard by the High Court for months, and these people continued to languish in detention. They had committed no crime- it was only that the State was satisfied that they might commit one. This piece of legislation has often been criticised as being a ‘lawless law’, and it fails to oblige by India’s international obligations laid down in conventions such as the International Covenant on Civil and Political Rights (‘ICCPR’). India has ratified the ICCPR, and Article 51(c) of the Constitution of India puts an obligation on the Government to “foster respect for international law and treaty obligations in the dealings of organised peoples with one another”.

India’s Reservation to Article 9 of the ICCPR

Article 9 of the ICCPR reads;

“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”.

This has also been extended to administrative or preventive detentions. India, while ratifying the ICCPR, expressed a reservation to Article 9, stating that “it shall be so applied as to be in consonance with the provisions of clauses (3) to (7) of Article 22 of the Constitution of India”. Article 22 of India’s own Constitution lays down certain procedural safeguards with respect to preventive detentions in the country. However, a mere reservation would not entitle a country to go against the object and purpose of the treaty, which is to protect the inherent dignity of every individual. The United Nations Human Rights Council has also stated that the absence of a prohibition on reservations does not mean that any reservation is permitted and that any discriminatory reservation made by a State is not valid. Therefore, a mere reservation would not allow India to go against the object and purpose of the ICCPR, and detain individuals arbitrarily.

Analysing the Public Safety Act within the ICCPR

The aim of the ICCPR is to guarantee that the inherent dignity of an individual is protected at all costs, and it obligates States to “protect and preserve basic human rights… [and] “compel[ed] to take administrative, judicial, and legislative measures in order to protect the rights enshrined in the treaty and to provide an effective remedy.” The Public Safety Act goes the opposite way- it aims to take away the dignity of individuals by subjecting them to arbitrary detention without trial. While the ICCPR puts an obligation on India to take necessary steps to repeal such laws, the Public Safety Act continues to be used in the same manner after more than 40 years of its enactment, without any substantial changes in the right direction.

The first and the most important Section of the Public Safety Act is Section 8, which gives wide powers to the executive authorities to detain any individual who might act in a manner prejudicial to the security of the State or to public order. As long as the Government is satisfied that there is a likelihood of a breach of public order, it can take necessary steps to detain individuals for up to two years. This particular section of the Act has been abused time and again by State Governments to detain protestors, journalists, students, and even the political opposition. This is aided by the vague nature of the definition of what constitutes as a breach of public order. Since almost anything and everything could fall under the bracket of this definition, it has become very easy for the executive to detain individuals on vague grounds. This violates Article 9(1) of the ICCPR, which prohibits any arbitrary detention carried out in violation of a procedure established by law. Even though the Public Safety Act in itself can be considered to be a ‘procedure established by law’, it has been held that the meaning of ‘law’ in such a phrase does not only refer to a piece of legislation in isolation, but the same must be ‘just, fair, and reasonable’.

Further, Section 13(1) of the Act lays down that the grounds of detention have to be communicated to the detained individual, but Section 13(2) bars any such disclosure which would be against ‘public interest’. No definition of what would be ‘against public interest’ has been mentioned in the Act itself, giving the executive unfettered power to disclose grounds of detention on their own whims and fancies. This is violative of Article 9(2) of the ICCPR, which obligates States to inform the detainees of their grounds of detention promptly. Due to such non-disclosure and absence of a trial, individuals often remain under detention for long periods of time while being oblivious of the grounds of their detention. This also hinders them from preparing a defence to be used in the courts of law.

Article 9(5) of the ICCPR also puts an obligation on States to compensate individuals who have been victims of an unlawful arrest or detention. However, even though hundreds of detention orders are quashed by the Jammu and Kashmir High Court, there is hardly any compensation that is paid to the victims. Only a few individuals have received compensation to date.

Article 14 of the ICCPR guarantees a fair trial to all individuals, which also includes a speedy disposal of the case under Article 14(c). However, in June 2020, the Bar Association of Jammu and Kashmir wrote a letter to the Chief Justice of India, stating that more than 99%  of the habeas corpus petitions filed after August 2019 were pending before the Jammu and Kashmir High Court, and most of these detentions were made under the Public Safety Act.

The procedural safeguard to the Advisory Board under Section 14 is also eyewash- more than 99% of orders have been confirmed by the board, and more than 80% of these orders have been quashed by the High Court. A lot of these orders have also been quashed due to procedural lapses such as non-disclosure of grounds of detention and cases not being referred to the advisory board on time. Moreover, Section 16(5) prevents an individual from making a representation before the Advisory Board. This provision violates Article 14(3)(b) of the ICCPR, which confers the right to one’s own counsel to an individual.

Another element that surrounds the Public Safety Act is the phrase ‘subjective satisfaction’. While dismissing the plea of an individual detained under the Act, a  single judge bench of the Jammu and Kashmir High Court refused to go into the merits of detention, holding that as long as the executive is satisfied, the Court cannot go into the merits of the case- essentially holding that the remedy of habeas corpus is futile for someone under administrative detention. This also violates the fair trial rights of an individual guaranteed under Article 14 of the ICCPR, and the bare minimum requirement of holding a proper trial (which, although is itself barred under the Act, and remedies are sought through habeas corpus petitions). When the same case went for review under a division bench of the same Court, the judgment required the individual to prove that he had ‘shunned a particular ideology’. This part of the judgment was in contravention to Article 19 of the ICCPR, which guarantees freedom of opinion to individuals without any interference from the State.

Conclusion

The Public Safety Act is in clear contravention to provisions of the ICCPR and fails to protect and uphold the inherent dignity of an individual. By authorising administrative detention under these stringent provisions, it violates the right to a fair trial, the right against arbitrary detentions, and other procedural as well as substantive safeguards laid down in the ICCPR. Since India has ratified the ICCPR and cannot act in contravention to the object and purpose of the treaty despite making reservations, it becomes imperative for it to revisit the Public Safety Act and repeal it in its entirety.


[i] Zayaan Rouf is an undergraduate law student at Gujarat National Law University