India Today - - CONTENTS - By Harsh Bora

Af­ter con­sti­tu­tional chal­lenges to the ef­fec­tive ab­ro­ga­tion of Ar­ti­cle 370, the fo­cus in our courts is now on a slew of habeas cor­pus pe­ti­tions chal­leng­ing de­ten­tions in Jammu and Kash­mir. The lat­est one, filed by Ra­jya Sabha MP and MDMK leader Vaiko in the Supreme Court, seeks to pro­duce in court Fa­rooq Ab­dul­lah, the oc­to­ge­nar­ian for­mer chief min­is­ter of J&K.

Pre­ven­tive de­ten­tion laws, which per­mit de­ten­tion of per­sons who threaten pub­lic or­der or the se­cu­rity of the State or are likely to com­mit an of­fence, have been on the statute books from the in­cep­tion of In­dia’s con­sti­tu­tional democ­racy. They also have a his­tory of mis­use by the rul­ing es­tab­lish­ment against its po­lit­i­cal op­po­nents. The Jammu and Kash­mir Pub­lic Safety Act (JKPSA), the state’s own pre­ven­tive de­ten­tion law, has been de­ployed re­peat­edly since its en­act­ment in 1978, and has been the in­stru­ment of choice in the re­cent spate of ar­rests of prom­i­nent po­lit­i­cal per­sons.

Against bu­reau­crat-turned­politi­cian Shah Fae­sal, the JKPSA was in­voked on Au­gust 14, nine days af­ter the ‘di­lu­tion’ of Art. 370; Fa­rooq Ab­dul­lah’s de­ten­tion, for be­ing a ‘threat to pub­lic or­der’, was in re­sponse to the habeas cor­pus filed by Vaiko. Th­ese two cases are the most re­cent ex­am­ples of how laws with strin­gent pre­ven­tive de­ten­tion pro­vi­sions, such as the JKPSA or the Na­tional Se­cu­rity Act (NSA), can be used to si­lence crit­ics of the rul­ing es­tab­lish­ment—some­times for years.

This is made pos­si­ble by le­gal pro­vi­sions that grant sweep­ing pow­ers to de­tain and al­low hear­ings be­hind closed doors, be­sides deny­ing de­tainees ba­sic rights such as im­me­di­ate

in­for­ma­tion on the rea­sons for ar­rest, le­gal as­sis­tance and the right to seek bail, which ‘ar­rested’ per­sons have but ‘de­tainees’ do not. For in­stance, un­der the NSA and JKPSA, the gov­ern­ment can de­tain per­sons for up to 10 days be­fore dis­clos­ing any rea­sons to them. And then too, only if the gov­ern­ment does not pro­hibit this dis­clo­sure as be­ing against the pub­lic in­ter­est, mak­ing it dif­fi­cult to ef­fec­tively chal­lenge the de­ten­tion or­der. All de­ten­tion or­ders un­dergo scru­tiny by an Ad­vi­sory Board, headed by re­tired judges, and must ei­ther be con­firmed or re­voked by it, and this can take up to 12 weeks. But rather than be­ing ef­fec­tive mon­i­tors, boards rou­tinely con­firm de­ten­tion or­ders, as has been the re­cent ex­pe­ri­ence un­der the JKPSA. Ac­cord­ing to in­for­ma­tion ob­tained un­der the RTI Act, over 99 per cent of de­ten­tions be­tween April 2016 and De­cem­ber 2017 were con­firmed by the J&K Ad­vi­sory Board, but more trou­blingly, 81 per cent of th­ese con­fir­ma­tions were later quashed by the High Court of Jammu and Kash­mir. This points to­wards mis­use of the JKPSA, as most de­ten­tion or­ders were found to be il­le­gal by the high court.

Pre­ven­tive de­ten­tion un­der the NSA has also been used for ex­plic­itly po­lit­i­cal rea­sons. For ex­am­ple, in the fairly re­cent cases of Dalit rights ac­tivist Chan­drashekhar Azad in Ut­tar Pradesh and jour­nal­ist Kishorecha­n­dra Wangkem­cha in Ma­nipur, both crit­ics of the rul­ing gov­ern­ment. In both cases, de­ten­tion or­ders were im­posed im­me­di­ately af­ter they had been granted bail

The sweep­ing pow­ers avail­able to the State un­der the Pub­lic Safety Act make it prone to fre­quent mis­use

in other crim­i­nal cases, pro­long­ing their time in cus­tody. The tran­si­tion from ‘ar­rest’ to ‘pre­ven­tive de­ten­tion’ was seam­less—not to men­tion po­lit­i­cally ex­pe­di­ent—in Azad’s case, for ex­am­ple. Although the Supreme Court has in the past up­held them as con­sti­tu­tional, the im­mense pow­ers granted to the state un­der pre­ven­tive de­ten­tion laws— and the en­su­ing sus­pen­sion of the rights of de­tainees—con­tinue to give rise to le­git­i­mate fears that th­ese laws sti­fle civil lib­er­ties and lead to tar­get­ing of po­lit­i­cal and ide­o­log­i­cal op­po­nents. In Maneka Gandhi (1978), Jus­tice Kr­ishna Iyer, in a pi­o­neer­ing judg­ment, had re­marked: “Law­ful il­le­gal­ity be­comes the rule if law­less leg­is­la­tion be not re­moved.” Ev­ery mis­use of pre­ven­tive de­ten­tion laws makes an even stronger case for their crit­i­cal re-ex­am­i­na­tion.

PRE-EMPTING OP­PO­SI­TION? For­mer J&K chief min­is­ter Fa­rooq Ab­dul­lah is now de­tained un­der JKPSA

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