Why a lawyer in Kashmir is asking for a constitutional amendment from 1979 to be enforced

On May 19, the Jammu and Kashmir High Court issued notice to the Central government asking it to file a reply within a month to a petition challenging the validity of the infamous Jammu and Kashmir Public Safety Act.

The Public Safety Act is a preventive detention law that allows authorities to hold individuals in custody without a trial for upto two years on grounds of national security and upto a year for the maintenance of public order. The law is specific to Jammu and Kashmir.

The petition was filed in September 2019 by Syed Tassadque Hussain, a senior lawyer in Srinagar. “For 14 months, all we got was just a date for the next hearing,” he said. “Unfortunately, there is no debate about the delay in the hearing of the petition in the media.”

Hussain’s petition has challenged the constitutionality of the Public Safety Act based on amendments made to the Constitution of India in 1979.

That year, the Janata party government at the Centre enacted the Constitution (44th Amendment) Act, passed by Parliament in December 1978, to undo constitutional changes made by the Indira Gandhi government during the emergency in 1975.

One of the amendments modified Article 22 of the Constitution, which deals with protection against detentions. This amendment – Section 3 of the 44th Amendment Act – is still to be notified 41 years later. Like previous governments, even the Modi government has refused to specify a time-frame for the implementation of this amendment.

Many say this is perhaps the only one of all the amendments made to the Constitution till date which hasn’t been enforced yet.

What does the amendment say?

Prior to the amendment, clause 4 of Article 22 of the Constitution allowed authorities to detain a person for a maximum period of three months unless “an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court”, reported in its opinion before the expiration of the detention period that there is “sufficient cause” for such detention.

Section 3 of the Constitution (44th Amendment) Act, 1978 substituted this clause and limited the maximum period of preventive detention to only two months. The Public Safety Act in Jammu and Kashmir allows a person to be kept in preventive detention for a period of two years without trial. “If this amendment is brought into force, then the entire Jammu and Kashmir Public Safety Act, 1978, will have to be struck down,” said Hussain.

The Section 3 amendment also restricted the writ of the government in appointing advisory boards to review the detentions. For example, instead of having retired judges or those qualified to be appointed as judges on the Advisory Board, the amendment ensured that the board is headed by a serving judge of the relevant high court, who is aided by at least two retired or serving judges of any high court.

Another clause omitted by the Section 3 amendment was clause 7(a) in Article 22 of the Constitution, which allows Parliament to make laws for preventive detention of a person for a period longer than three months and without the opinion of an advisory board.

These clauses of Article 22 – clause 4 and 7 – were extensively used by the Indira Gandhi government during the emergency to detain her opponents arbitrarily. Once she was thrown out of power, the Janata party government led by Morarji Desai sought to reverse what it said were violations of the Constitution.

In 1982, three years after the 44th Amendment Act was passed, the Supreme Court said it did not approve of “the long and unexplained failure” to enforce Section 3 of the Act. “The Parliament having seen the necessity of introducing into the Constitution a provision like section 3 of the 44th Amendment, it is not open to the Central Government to sit in judgment over the wisdom of the policy of that section,” it had noted in AK Roy versus Union of India, 1982, while refraining from directing the government to do so.

Four decades later, Hussain believes it is high time the Jammu and Kashmir High Court stepped in and directed the government to enforce Section 3 of the 44th Amendment Act “because the will of the Parliament cannot be defied for an indefinite time”.

With Jammu and Kashmir now being a Union Territory, the enforcement of the amendment will automatically apply to the region, unlike the past when any constitutional amendment had to be ratified by the erstwhile state’s government.

‘A lawless law’

Enacted in 1978, Jammu and Kashmir Public Safety Act was primarily passed to crack down on timber smugglers in the erstwhile state. However, the law eventually became synonymous with the government’s efforts to crush dissent in the restive Kashmir valley.

In 1982, the Public Safety Act was described as a “lawless law” by the Supreme Court of India in Jaya Mala vs Government Of Jammu and Kashmir. But that hasn’t stopped successive governments in Kashmir from using the law against separatists, stone-pelters, politicians, activists and dissidents.

An Amnesty International report compiled after a summer of unrest in 2010 said the preventive detention law had become a tool for quelling political dissent – and by the government’s own admission, to keep people “out of circulation.”

In its arbitrariness and sweeping powers to the state, the act mirrors some of the notorious preventive detention laws seen historically across the globe. From civil war-torn Ireland in 1923 to the apartheid regime of South Africa in 1953, preventive detention laws have been an effective tool at the hands of the government to detain persons on flimsy grounds.

The law had also come handy for the union government in the run up to its announcement of August 5, 2019 decision. In February, 2020, Union Minister of State for Home G Kishan Reddy said 444 people in Jammu and Kashmir had been detained under the Public Safety Act since August 2019. Among those detained were three former chief ministers of the erstwhile state and a sitting Member of Parliament.

Prior to August 2019, the law had been extensively used during the 2016 Burhan Wani uprising with over 500 people booked under preventive detention in a span of less than four months.

As Jammu and Kashmir lost its status as a special state within the Indian union and its Constitution ceased to exist, it came under the ambit of Indian Constitution. Despite this, the Jammu and Kashmir Public Safety Act continues to remain in place. It was one of the 166 laws from the old state Constitution which was retained by New Delhi after the erstwhile state became a union territory.

Detention by government

Under Section 8 of Jammu and Kashmir Public Safety Act, the power to issue detention orders against an individual is entrusted to District Magistrates and Divisional Commissioners. In his petition, Hussain has challenged this clause, citing that the power to detain a person is a “sovereign function of the state” which can’t be delegated to any district or divisional level officer of the union territory.

“It is a political decision, therefore the government should take it,” Hussain argued. “The Lieutenant Governor himself or the cabinet should be responsible for it.”

Besides, it is the government which should share the burden of legal aid to the detainee, he said. “Preventive detention is merely based on suspicion against an individual. If the government is putting someone in jail because of its apprehension, why should the poor detainee spend lakhs of rupees to hire a lawyer. It is the government’s responsibility.”

Against natural justice

Hussain has also trained his eyes on other clauses of the detention law. Under Section 10(b) of the Public Safety Act, a detainee can be removed from one place of detention to another by the order of the government. Hussain, in his petition, argues that the relocation of a detainee without hearing him is in violation of natural justice.

The clause is also violative of Article 14 of the constitution, he claims. Article 14 is a fundamental right which underlines equality before the law.

If this clause is struck down, “all people detained outside Jammu and Kashmir will have to be brought back to central jail Srinagar/any jail in Srinagar,” the petition states. It also asked for compensation of Rs 5 lakh to all those detained under the law, whether within or outside the territory.

When it comes to the location of detainees, the Public Safety Act over the last few years has become harsher. Until 2018, those detained under the Public Safety Act could not be jailed outside the state. But in August 2018, the state government, headed by Governor Satya Pal Malik, removed the provision which barred detainees from being lodged in jails outside Jammu and Kashmir.

In the aftermath of the sweeping changes introduced on August 5, 2019, hundreds of Kashmiris detained under the law were sent to jails in other states like Uttar Pradesh and Rajasthan, thousands of kilometers from home. This long-distance imprisonment took a heavy financial and emotional toll on their families.

Sometimes, families were deprived of a chance to see their loved ones for one last time. In December 2019, a 65-year-old detainee from Handwara died inside a jail in Uttar Pradesh – the first political prisoner from Kashmir to die in an outside jail after the amendment to the Public Safety Act in 2018.

“The reason why I have styled my arguments in a Public Interest Litigation is because it is a litigation in favour of civil liberties and human rights of the citizenry of India, and not just Kashmir,” Hussain said.

The court has asked Hussain to file a rejoinder within two weeks after the government files its reply in the petition. The matter has been listed for next hearing on August 24.