For most of its existence, the Jammu and Kashmir National Conference (NC) and Peoples Democratic Party (PDP) have shared a similar defining feature: their steadfast alignment with pro-India politics in Jammu and Kashmir. Despite varying levels of influence and power over the years, the NC and PDP leaderships have faced local resentment and separatist anger due to their loyalty to India in the politically turbulent Kashmir Valley.

This reality however changed on August 5, 2019, when the Central government introduced the Jammu and Kashmir Reorganisation Act, 2019, which details the administrative changes to the Union Territory’s statehood, autonomy, and constitution that flowed from the repealed Article 370 and 35A of the Constitution. While the Centre repealed 205 State laws, it retained some laws from the old State Constitution, among them the infamous Jammu and Kashmir Public Safety Act (PSA).

Specific only to Jammu and Kashmir, the PSA is a preventive detention law that grants the Union Territory sweeping powers to detain a person without trial. Those detained for threatening public order can be held for up to one year, while the detention period can extend to two years for individuals deemed a threat to national security.

As constitutional reorganisation swept Jammu and Kashmir in August 2019, retaining the PSA seemed to be a fitting coda to the Modi government’s controversial move. The Delhi-controlled Jammu and Kashmir administration went on to book NC and PDP’s top leaderships, including the three former Chief Ministers—Farooq Abdullah, Omar Abdullah, and Mehbooba Mufti—under the PSA. Omar Abdullah was accused of “using politics to cover his radical ideology”, while Mehbooba Mufti was alleged to be “collaborating with separatists”.

Five years have passed since New Delhi labelled the three former Chief Ministers as security threats, but the two main regional forces seem to be still feeling the sting. Perhaps this is why the manifestos of both the parties issued for the upcoming Assembly election—to be held after a decade of din and drama—call for the removal of the PSA forever.

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Legal experts, however, believe that repealing the law will not be straightforward, given that Jammu and Kashmir’s elected Assembly must navigate a new legal framework with significantly reduced powers compared to the erstwhile State Assembly.

Why now?

Originally introduced by Sheikh Abdullah (Omar Abdullah’s grandfather), the PSA was enacted in 1978 to crack down on timber smugglers in the former State. However, successive governments have actually used the Act to crush political dissent in the restive Valley. In fact, Amnesty International termed the PSA a “lawless law”, noting that it has “largely supplanted the regular criminal justice system in J&K”.

When Omar Abdullah became Chief Minister in 2009, he followed in the footsteps of his predecessors. In his first four years in office, Omar’s government booked 1,257 people under the Act (until July 2013). On October 1, 2013, the Chief Minister told the State Assembly: “There is no proposal or need for revocation of Jammu and Kashmir PSA, 1978…” as the “Act has sufficient inbuilt safeguards”.

A decade later, Omar Abdullah is expected to repeal PSA if his party is elected to power in the upcoming election. “We have been talking about putting the repeal of PSA on the agenda since 2019 when we had hoped the Assembly election would be held,” he told Frontline. “Now it has been formally included in our manifesto.”

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While the NC vice-president did not explain why he did not repeal the PSA during his tenure as Chief Minister, a party leader defended the Act as a safeguard for the former State. “Under the NC government, not a single person who believed in India’s Constitution was slapped with a PSA,” he told Frontline, declining to be identified. “It was only used against separatists and stone-pelters. So why would we have revoked it when its only purpose was to safeguard the State?” The leader went on to admit that when a State has constitutional legitimacy to disempower ideological opponents, it would not be inclined to end that legal impunity.

Omar Abdullah is not the only leader, and the NC is not the only regional party that refrained from repealing the PSA during its tenure. The PDP, which has now pledged to end the PSA, was in office from 2016 to June 2018 with Mehbooba Mufti as Chief Minister, and heavily relied on the Act to control public unrest following the killing of the militant leader Burhan Wani. Notably, Mufti’s administration also detained prominent human rights activist Khurram Parvez under the PSA.

A report by the United Nations High Commissioner for Human Rights, released in June 2018, states that between March 2016 and August 2017, the Mehbooba Mufti-led government made approximately 1,000 arrests under the PSA, a strikingly high number.

Although the Jammu and Kashmir State Assembly amended the PSA in 2012 to prohibit the detention of people under 18 years of age, the Amnesty report warned the State government that even minors had been arrested in 2016 and 2017.

“PSA has so many draconian clauses that even if there is no proof against an individual, the State can still book him without trial,” said a senior PDP leader, who served as a Minister in the PDP-BJP coalition government. “After 2019, the government of India repealed hundreds of State laws in Jammu and Kashmir but kept the PSA in place in order to control and suppress the population.”

The former Minister explained how draconian the PSA was. The entire authority is vested below the command of a sitting Chief Minister. “It was made so draconian that there is no authority above a Deputy Commissioner who could challenge it. No elected government had any authority to end the detention period of any prisoner, until the court intervened. The law was draconian, but its making was much more draconian.”

When asked why his government did not repeal the PSA despite having the opportunity, the former Minister explained, “We were a coalition government with an agenda of alliance, and removing the PSA was not feasible within that framework. We wanted to end it, but it would have come at the expense of our government. [PDP] could not afford that risk.”

In fact, however, as Kashmir-based legal expert Habeel Iqbal said, both regional parties could have abolished the harsh preventive detention law but kept it going as a political tool to contain any political fallout adverse to them. “If the Union Territory Assembly decides to scrap the PSA, it may be challenged and might not withstand the scrutiny of the court, but it would at least show the political will to address the issue,” explained the advocate, who has extensive experience in PSA cases. “That said, these parties [NC and PDP] did not do away with this law when they were in power and, in fact, gave more teeth to it. It is clearly more rhetoric than reality now.”

‘Even more brazen’

Both PDP and NC leaders argue that their governments did not use the PSA as aggressively against lawyers, activists, journalists, and civilians as the LG administration has since 2019. The fact is that over the years, human rights organisations have alleged that both NC and PDP did use PSA to target human rights defenders, journalists, and separatists, which stains their respective tenures.

As per data provided by the Jammu Kashmir Coalition of Civil Society (JKCCS), since the abrogation of Article 370 in August 2019 and until the end of 2019, 412 people were booked under PSA. In 2021, over 100 people were detained, while in 2022, 650 people were booked under the draconian law, including four journalists.

“Our government only booked anti-state elements under PSA,” a senior PDP leader, wishing not to be identified, told Frontline. “It was used very restrictedly in our tenure. But after 2019 its use has become more brazen.”

In fact, in recent months, the Jammu & Kashmir and Ladakh High Court has issued several rulings on the use of PSA in Jammu and Kashmir, pointing out the arbitrariness by the Union Territory authorities. “The courts have noted the impunity with which the LG administration has used the PSA in Kashmir,” said the NC leader quoted earlier. “This level of arbitrariness was not present during our government.”

Sarpanch or Chief Minister?

An important factor that these regional parties are likely to confront, if and when they try to repeal the PSA, is that the Union Home Ministry has recently empowered the Jammu and Kashmir Lieutenant Governor so much that political analysts believe that it was done to ensure the continuity of the Centre’s rule in the Union Territory and curtail the powers of an elected Assembly.

As the PDP leader said, in such a Union Territory setup, the Chief Minister is equal to a sarpanch and the cabinet ministers are similar to panchayat members. “Can you expect them to revoke PSA?” he asked.

A former bureaucrat in the Jammu and Kashmir government, who is aware of the legality of the PSA, told Frontline that the promise made by the NC and PDP in their manifestos about repealing the PSA is as difficult, if not impossible, as their promise to restore Article 370 and 35A. “A Union Territory Legislature is not as empowered as a State Legislature,” he said.

He pointed out that in the case of Parliament, a Bill is submitted for the President’s assent and the President has the option to either give his/her assent or return the Bill to Parliament for reconsideration. However, if the Parliament passes the Bill again, with or without amendments, the President has no option but to grant his assent. Article 111 of the Constitution says the President “shall not withhold assent therefrom”.

Similarly, Article 200 of the Constitution provides that the Governor shall not withhold assent if upon returning the Bill for reconsideration the State Assembly again passes the Bill with or without amendment.

“However, in the case of Jammu and Kashmir, the Lieutenant Governor is under no legal obligation to give his assent to the Bill if it is passed by the Union Territory’s Legislature for a second time,” the bureaucrat said. “Section 38 of the Jammu and Kashmir Reorganisation Act, 2019, provides that when a Bill is returned by the Lieutenant Governor to the Legislative Assembly for reconsideration and the Assembly passes it again with or without any amendment, the Lieutenant Governor may either assent the Bill or reserve it for consideration of the President. There is no legal binding on him to not withhold his assent.”

Moreover, there is no provision in the Constitution or in the Reorganisation Act that prescribes any time limit for the President’s consideration of a Bill, and there are examples where Bills reserved for the President’s consideration have never seen the light of day.

With legal experts and political parties well aware of the challenges, a tussle between the Lieutenant Governor administration and the elected Union Territory Legislature on the question of PSA is clearly on the cards, unless there is a change of heart or government at the Centre.

Zaid Bin Shabir is a journalist based in Srinagar.