The Jammu and Kashmir government's decision to release Masrat Alam, a hardline separatist leader, from prison has caused a political storm prompting protests from across the political spectrum. Lost in all the outrage over Alam's release is the simple matter that Alam, whom politicians have rushed to dub a "terrorist" was being detained under a draconian law that has seen more than 20,000 people imprisoned in J&K over the last two decades without trial.
The Bharatiya Janata Party, which is part of the ruling coalition in J&K, itself agitated against the decision to release Alam, with the broader Sangh Parivar calling it an anti-national move. The Opposition too jumped on the issue, blaming the BJP for threatening the country's security by releasing someone who had organised anti-India protests in the past. The Centre claims that J&K chief minister Mufti Mohammed Sayeed never consulted it before deciding to release Alam. Sayeed's party, meanwhile, has said that it would like to see all political prisoners freed.
That final phrase is key. Alam was not an alleged "terrorist," at least in the eyes of the law, but a political prisoner being detained under J&K's Public Safety Act.
What is the Public Safety Act?
Passed first in 1978 and amended occasionally since, the Public Safety Act allows authorities in Jammu and Kashmir to detain people in order to "prevent" them from acting in a manner that could affect public order. The law allows authorities to detain someone for 12 months without trial that can be extended to 2 years based on their behaviour and the potential threat to public order that they pose.
Has the government withdrawn charges?
The government had slapped Alam with PSA charges eight times consecutively since 2010, when he was first detained under the law for having organised anti-India protests which saw more than a hundred die, according to the home minister. This means that, though the law only allows for two years of preventive detention, the government simply had to re-apply the PSA against him repeatedly to keep him behind bars.
Alam himself claimed that the government wasn't doing him a favour by releasing him, insisting instead that PSA had simply expired. Abdullah also pointed out that there are other cases against Alam, including those of criminal conspiracy and waging war against the Indian state, but the separatist leader claims he has been granted bail in these matters.
How has the law been used?
An Amnesty International report in 2011 estimated that between 8,000 to 20,000 people have been detained under the PSA over the last two decades in J&K. The report relates a Supreme Court judgment calling such administrative, rather than penal, detention as being in furtherance of a "lawless law" and describes an entire alternative criminal justice system that doesn't require the due process that comes along with trials.
"Hundreds of people are detained under the PSA in J&K, many of them political activists and youth suspected of throwing stones at security forces. Instead of charging and trying persons suspected of committing offences in a fair trial in a court of law, the J&K authorities continue to circumvent the rule of law by resorting to the PSA," the Amnesty report says.
Amnesty insists that the law ends up falling afoul of India's commitments to human rights, putting the country on par with others like Egypt in the process. Detaining people under PSA allows the government to shirk its requirements as far as due process goes, meaning the bar for providing evidence and prosecuting those against whom charges have been met is much lower. Moreover, the repeated use of the PSA, as against Alam in which case it was used eight times in a row, is particularly galling.
This means that Alam, by being released, has neither been acquitted nor pardoned. He has simply been given the benefit of personal liberty accorded to most Indians, even if they are caught up in a criminal case, since he has been given bail. While the matter of Alam himself has already turned into a political football, it's worthwhile looking at the law itself that allows such arbitrary matters to control the question of personal liberties.
The Bharatiya Janata Party, which is part of the ruling coalition in J&K, itself agitated against the decision to release Alam, with the broader Sangh Parivar calling it an anti-national move. The Opposition too jumped on the issue, blaming the BJP for threatening the country's security by releasing someone who had organised anti-India protests in the past. The Centre claims that J&K chief minister Mufti Mohammed Sayeed never consulted it before deciding to release Alam. Sayeed's party, meanwhile, has said that it would like to see all political prisoners freed.
That final phrase is key. Alam was not an alleged "terrorist," at least in the eyes of the law, but a political prisoner being detained under J&K's Public Safety Act.
What is the Public Safety Act?
Passed first in 1978 and amended occasionally since, the Public Safety Act allows authorities in Jammu and Kashmir to detain people in order to "prevent" them from acting in a manner that could affect public order. The law allows authorities to detain someone for 12 months without trial that can be extended to 2 years based on their behaviour and the potential threat to public order that they pose.
Has the government withdrawn charges?
The government had slapped Alam with PSA charges eight times consecutively since 2010, when he was first detained under the law for having organised anti-India protests which saw more than a hundred die, according to the home minister. This means that, though the law only allows for two years of preventive detention, the government simply had to re-apply the PSA against him repeatedly to keep him behind bars.
Yes, my Govt detained Masarat Alam & we kept him out of circulation. Detention isn't ideal but difficult situations have to be tackled 1/n
— Omar Abdullah (@abdullah_omar) March 7, 2015Alam was the chief architect of the 2010 protests. It's not a coincidence that the protests died out AFTER his hard won detention 2/n
— Omar Abdullah (@abdullah_omar) March 7, 2015Alam himself claimed that the government wasn't doing him a favour by releasing him, insisting instead that PSA had simply expired. Abdullah also pointed out that there are other cases against Alam, including those of criminal conspiracy and waging war against the Indian state, but the separatist leader claims he has been granted bail in these matters.
How has the law been used?
An Amnesty International report in 2011 estimated that between 8,000 to 20,000 people have been detained under the PSA over the last two decades in J&K. The report relates a Supreme Court judgment calling such administrative, rather than penal, detention as being in furtherance of a "lawless law" and describes an entire alternative criminal justice system that doesn't require the due process that comes along with trials.
"Hundreds of people are detained under the PSA in J&K, many of them political activists and youth suspected of throwing stones at security forces. Instead of charging and trying persons suspected of committing offences in a fair trial in a court of law, the J&K authorities continue to circumvent the rule of law by resorting to the PSA," the Amnesty report says.
Amnesty insists that the law ends up falling afoul of India's commitments to human rights, putting the country on par with others like Egypt in the process. Detaining people under PSA allows the government to shirk its requirements as far as due process goes, meaning the bar for providing evidence and prosecuting those against whom charges have been met is much lower. Moreover, the repeated use of the PSA, as against Alam in which case it was used eight times in a row, is particularly galling.
"As a matter of practice, the J&K police do not favour criminal proceedings, which requires such due process considerations as a court of law with independent judges, defence lawyers and requirements of evidence. Not surprisingly, the J&K police prefer to use the PSA, which is overseen by executive officers with almost no evidentiary requirements or possibility for independent review."
This means that Alam, by being released, has neither been acquitted nor pardoned. He has simply been given the benefit of personal liberty accorded to most Indians, even if they are caught up in a criminal case, since he has been given bail. While the matter of Alam himself has already turned into a political football, it's worthwhile looking at the law itself that allows such arbitrary matters to control the question of personal liberties.
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