India has had a rather long history of draconian laws. The hall of fame of such laws includes amongst others-The Armed Forces Special Powers Act (AFSPA), Prevention of Terrorism Act (POTA), Terrorist and Disruptive Activities (Prevention) Act. All of these laws have been widely criticised by human rights organisations as they contained provisions grossly violative of human rights. The Public Safety Act (PSA) of Jammu Kashmir can be rightfully called the most inconspicuous member of this infamous club. The PSA has been brazenly used by various ruling dispensations to crush dissent and incarcerate citizens-all under the guise of maintaining law and order. Legal experts and human rights organisations have demanded a comprehensive review of the act on a repeated basis. They point out that the act falls short of the established norms of natural justice, such as-equality before law, the right of the accused of appearance before a Magistrate within 24 hours of arrest, fair trial in a public court, access to competent legal counsel, cross examination of the witnesses, appeal against conviction, protection from being tried under retrospective application of law, etc. Despite repeated remonstrations against the law no one has ever sought a judicial review of the PSA. Given these facts it’s not surprising that an estimated 8,000 to 20,000 people have been detained under the PSA over the last two decades (according to an Amnesty International report). Experts and political commentators point out that the right way to go about it is to chargesheet anyone accused of breaking the law and follow due judicial process. As of today the law continues to be used against innocent people as well as political opponents.
The PSA is the law under which controversial separatist leader Masharat Alam has been kept incarcerated for the last few years. Alam was allegedly the mastermind who organised the anti-India protests in the Valley in 2010 that saw the death of 112 people. Given these serious allegations, not much protest arose when Alam was detained. When the maximum detention period under the PSA expired the government simply re-applied the PSA to keep him detained. Internal security experts have pointed out that the release of separatist hardliners like Alam would make the job of security agencies that much harder. Be that as it may it is important to ask why the Government does not simply let the law take its own course. How does one competently assess the security risk of releasing political prisoners who have not been convicted in any court of law? Must all secessionist agitations be resolved through the blunt force of draconian laws? At what point does protecting public safety transgress into a pulping of judicial due process? These are tough and uncomfortable questions which need to be asked so that the Public Safety Act is amended so as to conform to the standard of protection of human rights accorded to political prisoners globally. It is given this context that the Centre’s grandstanding on the whole issue smacks of political opportunism. The Prime Minister has said that he shares the anger of those voices echoing against the release of Masharat Alam. He also said that the People’s Democratic Party had not consulted the Centre before releasing Alam. This is both strange and puzzling. If the Centre thinks that Alam was unlawfully released then they should chargesheet Alam for whatever crimes he may have committed and let a court decide what his punishment should be. A government cannot be the arbiter when it comes to justice and people’s liberties. That’s what the law is for.