The PSA is the worst example of brazen misuse of the powers vested with the executive. The Jammu and Kashmir High Court has, from time to time, cautioned about the misuse of this Act and has quashed thousands of cases slapped on civilians, but its "misuse" is continuing unabated.
Since 1990, almost 2000 people have been booked under this Law in the state of Jammu and Kashmir. These cases are largely against civilians but the press has not been an exception, in spite of the fact that there is no specific mention about the media or journalists in this Act (Under Section 8 of PSA, any person (any citizen, whether a doctor, engineer, lawyer or a journalist, who the government feels is a threat to state is booked under this law).
Ghulam Nabi Shaida
The Law has been used against the media for the first time in 1986 when Ghulam Nabi Shaida, a respected journalist and editor of Urdu daily ‘Wadi Ki Awaz’, was arrested on charges of inciting communal tension in the state through his writings. Shaida was jailed for 40 days and the government sealed his office and printing press. For the first five days, he was kept in solitary confinement in the infamous Red-16 interrogation cell in Srinagar.
Shaida’s detention under this Act resulted in huge losses to his organization as it entailed a protracted legal battle to re-open the office and press. "I had to face huge losses and my employees were starving. The publication of paper was disrupted for several months", he said. He refuted charges that he had acted in a manner that would justify invocation of such a draconian law.
After a few months, the State High Court quashed the PSA case against him and also ordered that his office and press be restored. "It failed in the Court as government had taken this step just to muzzle the genuine voice of the people. The government did not want its folly in handling a particular situation to be highlighted in a transparent manner", said Shaida.
Shaida did manage to resume publication of his daily but the detention and subsequent closure broke the back of his organization. The Act was again slapped on him in early 1990, when the armed rebellion was at its peak in Kashmir. He, along with other journalists, faced the wrath of the government and at least six newspapers were sealed on the orders of then Governor Jagmohan, who was directly ruling the state in the absence of a democratically elected government. The state was under federal rule of New Delhi, after Chief Minister Farooq Abdullah resigned in January 1990. On different occasions, the PSA and other laws were used against media under the garb of fighting militancy.
"The Act has been misused by the government against journalists in brazen violation to basic democratic norms and against the spirit of freedom of press as enshrined in the Constitution", says Masood Hussain, a veteran journalist. He believes that the Act, in itself, is a violation as it was not subject to any judicial review and any person can be put in jail without any trial initially for a period of two years.
Slapping PSA on journalists did not end there but has been a continuous process. In 2005, Rehmatullah Khan, editor of an English daily ‘Rehmat’, was arrested under this Act and released later only after the High Court quashed his PSA orders.
Rouf Ahmad Khan
Another journalist, Rouf Ahmad Khan of ‘Srinagar News’, languished in jail for more than a year. He was charged with aiding and abetting militancy but his employer Gulzar Ahmad strongly denied that. "It was completely a fabricated case. He would be with us round the clock. It was just the government's excuse to suppress the media which reflected the people's voice", says Gulazar Ahmad.
Mohammad Maqbool Khokhar
Another example is Mohammad Maqbool Khokhar, better known as Maqbool Sahil, working as reporter/photographer with the mass circulated Urdu weekly ‘Chattan’. He was arrested in September 2004. He was not only booked under PSA but also under Official Secrets Act and charged with espionage for allegedly passing on vital security information to Pakistan. According to the grounds of detention served to him by District Magistrate Islamabad, 'the subject has developed relations under the garb of journalism, with secessionists and militant organizations. The activities of the subject are directly and adversely related to the defence and security of the country and being a potent threat, it is imperative to prevent the subject from indulging in activities prejudicial to the security of the state".
Accepting the dossier prepared by the Counter Intelligence wing of Jammu and Kashmir Police, the District Magistrate Islamabad ordered his detention and said "Now, therefore, in exercise of the powers conferred by Section 8 Clause (a) of J & K Public Safety Act 1978 I, Baseer Khan District Magistrate Anantnag (sic) hereby direct that the said Sh. Mohammad Maqbool Khokhar @ Maqbool Sahil be detained and lodged in Central Jail Kotbhalwal Jammu for a period of 24 months". It is pertinent to mention here that District Magistrate of Srinagar, wherefrom he was arrested, refused to issue the warrant under PSA ostensibly because he was not satisfied with the charges and it was later effected by the District Magistrate of Islamabad. Sahil originally hails from that district of South Kashmir.
While Maqbool continued to be in jail, the High Court quashed the PSA thrice in three years. In the first instance, the Jammu and Kashmir High Court ordered his release on 27 October 2005 but the security services refused to obey. His imprisonment was extended on 9 January 2006 for another two years under the PSA. As soon as he would complete 24 months detention, the government would come with another detention order under the same Act. The last order of detention was served to him on July 19, 2007 and he was released in January 2008.
Maqbool's family went through years of distress and when this writer managed to meet Maqbool in the court complex in Srinagar on August 10, 2007 (when he was presented before a judge for the first time), here’s what he said: "This is a concocted case against me. I used to work as a genuine journalist and was taking photographs of Army camps as part of my professional job but they used the same against me. The Court has refused to entertain these charges and quashed my PSA. I have been treated as a political prisoner while I am a journalist. They continued to avoid presenting me before the Judge and this is for the first time in three years that they brought me here. This is a lawless society and this goes against freedom of press, expression and even the Constitution of the country."
Reporters Sans Borders, an International organization fighting for freedom of press has denounced Sahil's detention many times. In a strongly worded statement the Paris-based organization said "the rule of law does not seem to be applied equally in India. It is urgent for the authorities in Srinagar and New Delhi to order the security forces to release the journalist, who is the victim of a shameful denial of justice."
The state of affairs of media in this backdrop portrays a dismal picture of how freedom has been trampled with these laws. This is true with other civilians as well. The country's top legal luminary and state's former Deputy Chief Minister Muzaffar Hussain Beg says, "We have been consistently saying that various provisions of the act need revision, prisoners from within the state should not be shifted to the jails outside the state. It has been felt that a pattern of harassment, intimidation, and deliberate disregard for the civil and political rights of those who are critical of the government has emerged over a period of time which is very unfortunate,"
He maintained that under Section 22 of the Act, any legal proceeding against officials for acts "done in good faith" are also disallowed. "This law has been widely used against the innocent people including journalists as well as political opponents," he said, alluding to ruling parties’ who settle scores with rivals.
Amnesty International has also criticized the use of this Law. One of its reports says that PSA is a vaguely formulated act that allows detention for up to two years without charge or trial on the purported presumption that they may in the future commit acts harmful to the state. It adds that lawyers in Jammu and Kashmir have consistently challenged specific PSA cases in the courts, but the government has blatantly disregarded court orders, quashing detention orders or granting bail. "Such disregard completely undermines the role of the courts to protect human rights" maintains report of the United States department of states.
The Supreme Court of India has highlighted the issue of non-application of mind while detaining a person under this law. "Personal liberty, the most cherished and valuable of all the liberties cannot be taken away by passing an order of preventive detention in a mechanical way. If there is non application of mind by the authority on this aspect then the Court is required and is bound to protect the citizens personal liberty which is guaranteed under the Constitution (Ref: Preventive Detentions (Safeguards and Remedies) Second edition by H Ishtiaq Hussain, Srinagar Law Journal Publications -2005 pp 91-92).
These observations of Supreme Court fit in these cases as on the face of it the executive has not applied the mind in slapping PSA on the journalists as the High Court have, in all the cases quashed the PSA as the charged could not be substantiated in the court of law.
These arguments, therefore, clearly show that the PSA has strangulated the freedom of not only civilian population but also the media in Jammu and Kashmir. Both the legal experts and journalists have repeatedly advocated the abrogation of this act in order to ensure the liberty of the people in a democratic state.
(Shujaat Bukhari is the Editor, Rising Kashmir. He is based in Srinagar. This article is part of the assignments related to his research project).