The Jammu and Kashmir administration and opposition parties of the so called “mainstream” camp are always up in arms, demanding annulment of AFSPA, from Delhi. The Armed Forces Special Powers Act (AFSPA) was enforced in the state, some 28 years ago, by the Indian Government. It is a law that gives legal cover to the armed forces operating in Jammu & Kashmir from prosecution. Out of the 50 cases of prosecution sought by the state administration since 2001, 47 were denied sanction.
Having said this, on the other hand, a similar kind of law enacted by state legislature itself, some 40 years ago, is no less draconian than AFSPA. This lawless law is the Public Safety Act (PSA). It was enforced in the year 1978, much earlier before AFSPA was extended to J&K by New Delhi. Now, the question is: why are there voices against former and not the latter? Is the PSA less lawless and draconian than AFSPA? Let’s canvass and have look at some of the provisions of The Public Safety Act:
Lawless are they that make their wills their law (William Shakespeare)
Section 8 of The Public Safety Act provides for arresting and jailing a person without a trial for two years on mere suspicion that he/she may disrupt law and order in the state or may act in a manner prejudicial to the state. Thereby, it permits detention without judicial intervention up to two years.
This provision is in contravention with the J&K Constitution. The renowned legal expert, A.G Noorani writes: “Unlike Article 22 of the Indian constitution, the constitution of Jammu & Kashmir contains no provision for preventive detention.”
Section 10-A states that the order of the detention under the act cannot be held to be inoperative or invalid on the grounds of technical issues, vagueness, non-existence of one or more grounds or that grounds are irrelevant or the officers had no territorial jurisdiction to make such detention.
Section 22 further provides that no suit, prosecution or any legal proceeding shall lie against any person for anything done or intended to be done in good faith in pursuance of this act.
These provisions of the act give same impunity to armed forces as are given under AFSPA. It therefore, gives the state and its forces immense power and is a powerful weapon for government to muzzle down dissent and widen crackdown on political opponents. The state acts arbitrarily and arrests anyone it views as dangerous.
If AFSPA is misused by central forces, as is the PSA. According to Amnesty International (in its 2010 Report), under this lawless law at least 10,000-20,000 people have been detained, since the enactment of the act. In a reply to a RTI filed by J&K RTI movement (Jan 2018) , the government revealed that there are no hard and fast rules, no Standard Operating Procedures (SOP’s) for ordering preventive detention under PSA. That is why, renowned legal expert, A.G Noorani opined, PSA is a devious way to imprison political opponents.
After canvassing both the acts (APSPA & PSA), we found that, these acts not only have same implication but both are draconian and harsh. If the AFSPA is preventing prosecution of central forces and hampering rule of law, the PSA is preventing prosecution of the state forces indirectly, in case they misuse this act. Those who are acquitted by state High Court are subsequently booked under this law for some different act, without following due procedure of law and rule of law. Where lies the difference? If revoking the AFSPA is in the hands of New Delhi, revoking the PSA is in the hands of state administration, as it is a state law. If revoking of AFSPA can become one of the confidences building measure, why can’t striking down the PSA law become a CBM among people of state?
—The author is a student of Law at Central University of Kashmir. He can be reached at: [email protected]