'Very Disturbing': What Kashmir Man's Detention Says About The Public Safety Act

The court quashed Muzamil Manzoor War's detention under PSA. Yet he continued to be detained for 15 more months.

'Very Disturbing Scenario': Why Kashmiri Man's Detention Under PSA Is Worrying

(Photo: Altered by The Quint)

As the COVID-19 pandemic began to sweep through the world and India awaited the impending lockdown, the Kashmir police, in February 2020, arrested Muzamil Manzoor War (26) under the Unlawful Activities Prevention Act. (UAPA).

The police claimed they had retrieved a grenade from his possession and he would consequently, be a threat to national security, his lawyer Shafqat Nazir told The Quint.

Since that fateful day, what followed is a series of harrowing events that befell War:

-Six months after his UAPA arrest, the District Magistrate passed a Public Safety Act (PSA) order against him

-The Jammu and Kashmir Public Safety Act, a preventive detention law, allows authorities to detain a person without conviction for up to two years if they are deemed a threat to public order or national security.

- Right after the PSA order, he was transferred from a jail in Kashmir to the Agra Central Jail even though the law explicitly says that detainees "who are permanent residents of the state shall not be lodged in jails outside the state"

- War’s father, however, was able to persuade the Jammu & Kashmir High Court to quash the PSA order two years later (in August 2022)

- Yet, he continued to be in illegal detention in Agra  for 15 more months, despite the court intervening twice 

- Note: While the High Court quashed the PSA order against War and directed that he be released him from detention, he will continue to languish in jail because of the UAPA case against him

Muzamil Manzoor War has spent 3 years, 5 months in incarceration already, out of which nearly one and a half years were under PSA.

This is his story, and based on what sporadic reports and numbers from the valley suggest, that of many others like him. 

Muzamil War's Story: 'A Very Disturbing Scenario’

After 15 long months of writing to authorities and repeated court visits, it was only on 5 June that his father succeeded in getting War transferred from the Central  jail in Agra to a district jail in Kashmir, his lawyer Nazir confirmed to The Quint.

According to The Wire, in a letter dated 2 August 2022, War's father, a former school teacher, pleaded with the J&K administration to shift his son to Kashmir “on humanitarian grounds.” He said that he had no source of income to  travel and visit him in Agra. 

But his pleas fell on deaf ears.

The court, on 30 August 2022, ruled that the order quashing War’s PSA detention be communicated to the jail authorities in Agra, so that he could be released.  

Despite this, he continued to be detained.  

In May this year, the High Court, taken aback by War's illegal confinement for over a year noted: 

“A very disturbing scenario has been presented before this Court which cannot be left to be dealt with in a routine manner except at the cost of undermining the Rule of Law.”

Justice Rahul Bharti directed the District Magistrate to produce War before the court on the next date of hearing, which is when he was finally transferred to judicial custody in Jammu and Kashmir.

Two Years, A Little Too Late?

The PSA, as pointed out above, allows for a maximum detention of two years. But it's not uniform across cases.

The Act (Section 18) prescribes a detention of up to a year, in case the person in question has disrupted "public order or indulged in smuggling."

However, if there is suspicion of the person having acted against the "national security of the state," then the detention can extend for up to two years.

In War's case, here's where it gets interesting.

Although his lawyer filed the petition in 2020 itself, immediately after War was detained under the Act, by the time the court’s relief came for him in 2022, it had already been almost two years.

“So, even though the court did quash the PSA case, the police were able to achieve their objective of a prolonged detention,” Desai pointed out. 

“Courts take time and while the COVID-19 pandemic is often cited as a reason for delays, it is not a sufficient justification. Habeas corpus cases ought to be expedited, yet unfortunately, they aren’t," Abhinav Sekhri, a criminal law expert, added.

(Note: The writ of habeas corpus, a recourse in law, offers protection to people from unlawful and indefinite detention or imprisonment.)

Experts also pointed out that because preventive detention laws are arbitrary and draconian, prolonged custody becomes a norm.

“Preventive detention laws, like the PSA, by their very nature are draconian. There is no other motive, except to keep the accused in prolonged custody,” Human Rights Lawyer Mihir Desai told The Quint.

So How is the PSA Draconian?

Under the PSA, none of the regular safeguards that are assured to an accused under the criminal justice system apply.

“People are detained under the Public Safety Act on the basis of suspicion alone, without specific or confirmed allegations,” Shrimoyee Ghosh, a human rights lawyer, told The Quint.

“There is no investigation, no trial, no lawyer available to those detained. So, in a way it turns the entire criminal justice system on its head by taking away these basic rights,” Ghosh added.

There is no judge or judicial oversight involved in the way the PSA detentions are carried out — it is either the police or the district magistrate that does the detaining.

These cases go to the High Courts at a much later stage. Those detained are first expected to go through the regular process where they are first taken before an 'Advisory Board' (without representation) set up to review such detention.

Just like other safeguards of the criminal justice system go for a toss in the PSA, even the grounds on which such an order can be challenged in a court continue to be limited. 

"One can ask the High Court to quash PSA orders based not on the actual facts of whether there is any evidence for detaining the person, but only on whether the law was technically followed by the detaining authority in passing the orders. Thus, they decide whether to quash it or not based on grounds like failure to comply with procedure, delay in communicating the grounds to the one detained etc," Ghosh noted.

Interestingly, however, ours is one of the very few Constitutions across the world where the provision for preventive detention laws like the PSA is built in. (under Article 22.)

Jail, Bail, PSA: The 'Familiar' Playbook

Several PSA cases in Kashmir appear to follow the familiar playbook of “Jail, Bail & PSA.”

For instance, in Kashmiri journalist Fahad Shah’s case, he had received bail in two of the (then) three cases against him — the arrests for which had been consecutive — and was awaiting his bail hearing in the third case, when he was slapped with the Public Security Act.

(In April, the Jammu and Kashmir High Court quashed his PSA detention. However, he continues to be incarcerated in connection with a UAPA case.)

Similarly, in January last year, a day after a Jammu and Kashmir district court granted bail to 23-year-old journalist Sajad Gul in a criminal conspiracy case, he was booked under the Public Safety Act.

But, War’s case also departs from this usual pattern followed by the state authorities.

Why War’s Case Is Unusual

Following his detention under the PSA, War's lawyer, Shafqat Nazir  argued before the High Court that the magistrate had not applied his mind while passing the order.  

He questioned why War needed to be detained for preventing a threat to public order, when he was already in jail for the UAPA case and there was nothing indicating that he was anyway getting out on bail. War hadn’t even filed for bail.

The High Court agreed. It pointed out that the UAPA provisions War had been booked under made it very clear that the “chances of him getting bail were very remote.”

Thus, the court noted that “there were no compelling circumstances for the detaining authority to pass” the detention order.

"War's case is unusual, because normally PSA orders are slapped, when the government anticipates that the accused will be set at liberty by a court to prevent their release through back to back detentions,” Ghosh told The Quint.

Thus, even as the grounds for his continued PSA detention were essentially not made out, he remained in Agra Central Jail for 15 months after the High Court order.

So, Can Authorities Be Penalised For Not Releasing War Despite HC Orders?

Yes, technically.

“They should be penalised if they have not complied with the court order for 15 months. This can be contempt of court. The court can themselves take action against the police officials.” Senior Advocate Mihir Desai said.

However, there have been no reports so far to indicate that such action has been initiated.

While War, awaits trial in the UAPA case against him, it is perhaps important to ruminate on what Advocate Sekhri wrote in an essay titled Article 22 - Calling Time on Preventive Detention:

"Do we really need a legal tool that allows persons to be locked away for months on the basis of mere suspicion? Is there no such thing as a presumption of innocence? Until we start calling time on Article 22, I do not think we can fully begin to tackle these difficult questions. What are we waiting for?"