Preventive Detention Continues Without Any Rules in J&K, RTI Reveals

The Jammu and Kashmir government has not notified any Rules or Standard Operating Procedure (SOP) under the J&K Public Safety Act, 1978 (J&KPSA) in the four decades of its existence, the state home department has admitted in response to an RTI query. The query was filed by members of the J&K RTI Movement led by Dr Shaikh Ghulam Rasool.

This is despite the fact that district magistrates (DMs) and divisional commissioners (DCs) have been issuing hundreds and sometimes even thousands of detention orders every year, under the controversial J&KPSA, allegedly without any guidance except the reports and dossiers prepared by the J&K Police.

The J&KPSA empowers the administration to detain a person in order to prevent him or her from committing acts that are considered “prejudicial to security of state or maintenance of public order”.  Under the law, a person may be locked away for a period of up to two years without the right to be produced before a judicial magistrate or hire a lawyer to defend oneself. In recent years, the government allegedly issues such orders and confirms them despite the law requiring every such detention order to be place before a three-member advisory board for confirmation.

Section 23 of the J&KPSA empowers the state government to make rules to implement this law. It is common practice for legislatures to delegate powers to the executive to make rules to provide detailed procedures for implementing the bare bone provisions of the laws they enact.

Yet, by the home department’s admission, the J&K government has not invoked Section 23 to make any rule for implementing the J&KPSA even after forty years of enactment.

The RTI reply also revealed that 1,003 persons had been detained across J&K, for varying periods under this law, between March 2016 and August 2017 – a period which included several months of turmoil across J&K. The home department – looked after by the Chief Minister Mehbooba Mufti – refused to reveal the identities of the detenus.

Contradictory replies from the districts

Members of the J&K RTI Movement and other civil society activists filed common RTI applications across all districts of J&K in June 2017 asking for copies of  the Rules,  SOPs, number of persons detained under J&K-PSA, procedure for ascertaining age of a detenu, and detention orders, police reports and dossiers related to such detenus.

While the J&K Home Department’s was admitting that  rules and SOPs did not exist, the district authorities gave contradictory and bizarre replies to similar queries. Given below is a sampler of these replies:

* Anantnag district: “...the J&KPSA is a rule book consisting upon 711 pages and is in binding shape. It is not possible to photostat the book. The book is available at Govt. Press, Srinagar”. As regards the SOPs, the PA to the DC’s office replied: “The Standard Procedures (SOPs) is a rule book consisting upon hundreds of pages. It is not possible to photostat the same. The book is available at Govt. Press, Srinagar.”

“It appears that the office of the DM Anantnag (one of the worst affected districts during the turmoil) is following a rulebook about which the J&K Home Department is also not aware!” said Venkatesh Nayak, programme coordinator of the Access to Information Programme at Commonwealth Human Rights Initiative (CHRI).

* Srinagar: PIO attached a copy of the complete text of the J&KPSA to his reply and advised the RTI applicants to approach the proper forum, namely Home Department for the rules and the SOPs.

* Kulgam: The PIO attached a copy of Section 8 of the J&KPSA to his reply, indicating that these were all the rules and SOPs that were being followed while issuing detention orders in the district.

* Kishtwar: The PIO attached the text of the J&KPSA and an amendment made to this law in 2012 (which prohibits the detention of persons below the age of 18 years) to his reply and stated that they are the rules as well.

* Budgam:  RTI application was transferred to the Budgam District Police, without even informing the applicants about such transfer as required under Section 6(3) of the J&K RTI Act.

The PIO Budgam District Police replied as follows: “The latest version of the rules framed under the J&K Public Safety Act does not pertain to us. It can be had from concerned government department or agency.

“The law in this regard is clear that subjective satisfaction of the District Magistrate is required on the dossier provided to him for making detention. The mention of the SOP made by you in point No. 02 is factually as wel as, (sic) legally misconceived.”

In other words, said Nayak, the Budgam District Police treated the act of even asking questions about the existence of SOPs under the J&KPSA as an “affront to their power and authority”.

“This is another indicator of the deep levels of impunity that exist within the administration armed with extremely harsh laws like the J&KPSA. Home departments and police headquarters in other states issue SOPs on a range of operational matters such as registering FIRs, investigating crimes, handling cases of sexual assault against women and children, providing them counselling services, handling complaints of atrocities against dalits and adivasis etc. SOPs are issued in order to provide detailed procedures for implementing statutory provisions or rulings of high courts and the Supreme Court on specific matters. This is common practice across other states,” he added.

‘No detention of minors under the J&KPSA’

The home department replied that no minors were being detained under the J&KPSA. The certificate of date of birth issued by the competent authority was treated as proof of age. Similar replies were sent by the PIOs of other DM offices who bothered to respond to the RTI applications.

“No SOPs seem to have been issued on this subject either, especially when a detenu suspected to be a juvenile is unable to furnish proof of age,” Nayak said.