State government has failed to make rules and formulate a standard operating procedure (SoP) over implementation of Public Safety Act (PSA) nearly four decades after it was enacted in 1978.
The state home department’s reply to a Right to Information Act (RTI) query has revealed that the government has not formulated SoPs and has failed to frame rules to implement PSA.
“No rules have been framed so far and no SoPs have been formulated,” Public Law officer of the home department, Syed Sarfaraz Rizvi, who is also Public Information Officer, has stated in RTI reply no Home /RTI/331/2016/7391 dated 5 September 2017 to J&K RTI movement.
The PIO of the home department, however, has stated that “every case is examined on its merits by the concerned deputy commissioners in light of the dossier submitted by the concerned SSP/SP and in accordance with the provisions of the PSA.”
As per section 23 (powers to make rules) of the PSA, the government, by notification, can make rules consistent with the provisions of the Act, “as may be necessary for carrying out objects of this Act.”
RTI applicants including Advocate Bilal Ahmad had in June 2017 demanded information about the “latest version of the rules framed under J&K-PSA, 1978 and a copy of SoPs that provide guidance to the district magistrates for the purpose of making decisions regarding the detention of any person under the Act, based on police dossiers and some more details related to PSA detentions.” The information was originally sought from District Magistrate Jammu. However PIO of the DM office transferred the RTI application to the J&K Home Department.
Programme Coordinator, Access to Information Programme Commonwealth Human Rights Initiative, Venkatesh Nayak and Chairperson J&K RTI Movement, Shaikh Ghulam Rasool in an e-mail wrote that “it is common practice for legislatures to delegate powers to the executive to make rules to provide detailed procedures for implement the provisions of the laws they enact. Yet, by the Home Departments admission, J&K government has not invoked section 23 to make any Rule for implementing J&K-PSA even after forty years of enactment.”
The response to the RTI also reveals that 1003 persons were detained under PSA in the state from 4 March 2016 to 1 August 2017—a period which included months-long street unrest in Kashmir following killing of Hizbul Mujahideen Commander, Burhan Wani on 8 July 2016.
The applicants had also sought details of those detained under PSA including their personal details, grounds for detention and exact place of lodgment of each prisoner. The home department, however, denied disclosure of details of prisoners, details related to inspection of detention orders issued under the Act and police dossiers related to PSA detentions. The section 8(1) (f) of RTI Act exempts disclosure of information that may endanger the life or safety of a person or reveal the source of information given in confidence to law enforcement agencies while section 8(1)(g) exempts the disclosure of information that may impede the process of investigation, prosecution or apprehension of offenders.
The home department, a portfolio held by chief Minister, Mehbooba Mufti, also revealed that a person suspected to be “minor is not detained under provisions of PSA and birth certificate is issued by the competent authority is relied upon by the detaining authority.”
“District Magistrates and Divisional Commissioners have been issuing hundreds and sometimes even thousands of detention orders every year, under the controversial J&KPSA on reports and dossiers prepared by the police,” Nayak and Rasool wrote in an email.
The PSA enacted in 1978 was aimed at taking action against the timber mafia, but allows preventive detention of people acting in a manner that may be prejudicial to the maintenance of public order.