The Wire: National: Thursday, January 04, 2018.
While there
have been over 1,000 detentions between March 2016 and August 2017 under the
Jammu and Kashmir Public Safety Act, 1978, queries filed under the Right to
Information (RTI) Act by members of the J&K RTI movement revealed that the
state government has, during the four decades since the law became operational,
not made any rules or standard operating procedures (SOPs) under it.
Members of
the movement, led by Sheikh Ghulam Rasool, had filed the RTI application with
the state’s home department. The home department admitted that the SOPs were
not in place despite the fact that district magistrates and divisional
commissioners issued hundreds – and sometimes even thousands – of detention
orders every year under the Act, often on the basis of reports and dossiers
prepared by the state police.
Revealing
these developments, Venkatesh Nayak, an RTI activist and programme coordinator
at Commonwealth Human Rights Initiative (CHRI), said that Section 23 of the
J&K PSA 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,
J&K government has not invoked Section 23 to make any rule for implementing
J&K PSA even after 40 years of enactment,” he said.
Detentions
continue unabated under the Act
Nayak said
that the RTI reply also revealed that 1,003 persons had been detained across
Jammu and Kashmir for varying periods between March 2016 and August 2017 under
this law – a period which included several months of turmoil across the state.
He said the
home department refused to reveal the identities of the detainees citing
Section 8(1)(f) of the Act that exempts disclosure of information that may
endanger the life or safety of a person or reveal the source of information
given in confidence to law enforcement agencies, and Section 8(1)(g) that
exempts the disclosure of information that may impede the process of
investigation, prosecution or apprehension of offenders.
Nayak said
that the RTI query, originally sent to the district magistrate (DM), Jammu, was
transferred by the public information officer (PIO) to the state home
department. He said similar queries were filed by members of the J&K RTI
movement and other civil society activists across all districts of the state in
June 2017, seeking information on the rules framed under the J&K PSA, 1978,
and SOPs that provide guidance to the district magistrate for the purpose of
making decisions regarding the detention of any person under the Act, based on
police reports or dossiers. The query had sought details on the total number of
persons detained under the Act since March 4, 2016, and their complete list.
Varying
replies from different DM offices
Nayak said
that despite the the home department’s admission about the non-existence of
rules and SOPs under the Act, the districts gave contradictory and even amusing
replies to similar queries.
He said the
Anantnag DM’s office responded that “the J&K PSA 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 for the SOPs, it
said: “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.”
Stating that
Anantnag was a district which was the worst affected during the turmoil, Nayak
wondered what rulebook the DM’s office was following when there existed none.
While the PIO
in DM Srinagar’s office attached a copy of the complete text of the Act in
response to the reply and asked the applicants to approach the home department
for the rules and the SOPs, the Kulgpm DM’s office attached a copy of Section 8
of the J&K PSA to his reply, indicating that these were all the rules and
SOPs that were being followed.
Similarly,
Nayak said that the PIO of the DM’s office, Kishtwar, attached the text of the
J&K PSA 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. The Budgam DM’s office did not bother to reply to
the query and transferred it to the Budgam district police without even
informing the applicants as is required under Section 6(3) of the J&K RTI
Act.
The Budgam
police PIO responded saying that the “the latest version of the rules framed
under the J&K PSA does not pertain to us,” and that “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 SOP made by
you in point No. 02 is factually as well as, (sic) legally misconceived”.
Nayak said
that this response showed that the Budgam district police treated the act of
even asking questions about the existence of SOPs under J&K PSA 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&K PSA,” he said.
In case of
several other districts, he said, they did not even bother to send replies even
after first appeals were filed. Now second appeals are being filed against them
before the state information commission.
Why the
Act affects common citizens
The RTI
activist said that while many residents in J&K believe that the Act came
into being to tackle timber smuggling and so does not affect common citizens
much, “nothing can be farther from the truth”. He said the point to note is
that J&K PSA is not a substantive criminal law like the Ranbir Penal Code,
Svt. 1989, which recognises specific criminal offences, and is instead a law
that empowers the administration to detain a person in order to prevent him or
her from committing certain specific actions.
He said the
need for RTI interventions arose because of the “rampant use of J&K PSA in
2016”. It was the J&K RTI movement that invited the CHRI to conduct
sensitisation sessions for civil society activists, lawyers, law students and
media persons on the provisions of the J&K PSA and other related police
procedures. After understanding the statutory provisions and their human rights
implications, they decided to submit RTI applications across all districts in
order to document evidence based on official records about the manner of
implementation of J&K PSA.
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