Shakir Mir Srinagar
On June 26 last year, 29-year-old Amir Bashir War, an operating theatre technician at a medical NGO, was at work tending to patients with medical emergencies in an ambulance as they were being ferried to a hospital. He received a call from the Jammu and Kashmir Police post in Warpora village in the north Kashmir town of Sopore. Amir was ordered to appear before the police. He immediately rang up his father, 62-year-old Bashir Ahmad, who left his home soon after the call to join Amir.
“We thought it was regarding his passport ap-plication,” Bashir Ahmad told The Wire. But upon arriving before the police, the father was ordered to leave while Amir was asked to stay. The following day, Amir was arrested and bussed across the mountains to the Kot Bhalwal prison complex in Jammu. He was slapped with the Public Safety Act (PSA), the Union territory’s strict preventive detention law.
His PSA dossier, which lists out the grounds of detention, accuses Amir of being associated with the Pakistan-based terrorist group Lashkar-e-Tayyaba (LeT), feeding and sheltering terrorists, and using encrypted communication tools to avoid detection. It also charges him with “aggressively” campaigning in favour of the terrorist group on social media.
Amir Bashir War’s father shows a picture of his son. The family, however, strongly contested this and filed a habeas corpus (h/c) petition at the Jammu, Kashmir & Ladakh (JK&L) high court last year, for getting the PSA case against Amir quashed.
There is no FIR registered against the 29-year-old detainee, something his lawyer, who spoke to The Wire, said could help get his detention nulli-fied. “We are arguing that the detention is based on vague grounds and not having an FIR is in support of our argument,” Bashir Tak, the lawyer said.
Yet, the case has come up for hearing only once over the past six months despite it figuring in the high court’s ’cause list’ on seven occasions since.*
Amir is not the only PSA detenu to find himself facing this predicament. The Wire spoke to at least a dozen families who have had their loved ones detained under the Act, as well as to the lawyers who are fighting these matters. All of them unanimously claim that the “lack of hearing” in cases pertaining to detention was becoming a “regular affair” especially after the former state’s special constitutional status was revoked in 2019. The lawyers shared concerns over what they described as detention cases being pushed to the tail-end of the daily cause lists so that by the time their turn arrives, the clocks strike past 4 pm and the courts call it a day.
On June 9, The Wire visited the high court complex in Srinagar to speak to the various families who were there to attend the day’s proceedings as the cases of their imprisoned relatives were scheduled for hearing. Among them was Sadia Manzoor** from the Kulgam district of south Kashmir. Her 24-year-old brother, Imran Manzoor**, was arrested by the security forces in February 2022 from his store where he sold garments. His family said he was lodged in different prisons across the Valley before being flown to the Bareilly central jail in Uttar Pradesh.
His father Manzoor Ahmad doesn’t remember the last time the case had come up for hearing (high court documents show it was on March 7 this year) but whenever it was listed, the family would travel 70 kms to Srinagar to attend the court proceedings which were always few and far between.
“We come here each time his case is listed for hearing,” she says. “We wait for the whole day, sometimes without food, only to be informed that the judges couldn’t hear the case. They take up supplementary and regular cases and those that have come from the final hearing are not prioritised.”
Manzoor’s case was scheduled in the daily cause-list 25 times since May last year but orders have been passed only on five occasions, of which four pertain only to the court instructing the respondents (i.e. J&K UT) to file detention records. On June 9, Manzoor’s case was listed 104 on the serial list. His family had already resigned itself to the fct that it will not be heard. “We had to leave in the evening,” Manzoor Ahmad later told The Wire over a phone call.
What is the PSA? J&K Public Safety Act 1978 is a controversial preventive detention law that allows law enforcement agencies to detain individuals pre-emptively for six months and prolong their detention for up to two years, depending on the nature of the threat the au-thorities believe they could pose to the “mainte-nance of law and order” and “security of the state”.
There’s no mechanism to get bail under PSA. The cases are moved to an advisory board – whose members are selected by the administration itself – which determines whether they are filed on reasonable grounds. If the case doesn’t meet the board’s admissibility test, it is revoked. Official documents obtained by legal researchers in 2018 revealed that for 2016-17, only 0.6% of PSA cases by the authorities failed to get past the board. In the remaining 99.4% of cases, involving 998 persons, the board confirmed the detention orders.
The only option left for the families of the de-tained persons is to then appeal against their incar-ceration by filing a habeas corpus petition in the JK&L high court.
Although the PSA is analogous to the National Security Act, 1980 (a federal law), the latter is less severe because it allows a person to be detained for a maximum of 12 months as opposed to two years in the case of PSA.
Even as the Union government rammed hun-dreds of central laws through the Union territory as a consequence of reading down Article 370 — under whose aegis the PSA was first legislated — it did not substitute the PSA with NSA. Instead, it retained the law within the legal framework of the erstwhile state, something that human rights groups such as Amnesty International have slammed.
Growing number of habeas corpus appeal Based on the high court data accessed by The Wire, the petitions challenging detention under PSA appeared to have spiked sharply last year. In 2019, when Article 370 provisions were scrapped and the J&K state bifurcated, the high court received 507 such pleas. In the following years, the figures stood at 203 (in 2020), 327 (in 2021), and 841 (in 2022) respectively, signifying a sharp increase. This year so far the high court has received 266 petitions out of which only 16 have been disposed of while 250 are pending.
