J&K Public Safety Act (PSA)

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    In Context

    • Several youths of Jammu and Kashmir were taken into preventive detention under the controversial Public Safety Act (PSA).

    More about the news

    • Public Safety Act (PSA), allows detention for up to two years without a trial.
    • Held under this Act, they are sent to jails outside the Union Territory and have lost all contact with kin.
    • One unofficial estimate suggested around 200 youth faced detentions under the PSA this year. 
      • Most of them were those who had past involvement in street protests. 

    More about Public Safety Act

    • About:
      • The Jammu & Kashmir Public Safety Act (PSA), 1978 is a preventive detention law
      • Under this, a person is taken into custody to prevent him or her from acting in any manner that is prejudicial to “the security of the state or the maintenance of the public order”.
      • By definition, preventive detention is meant to be preventive, not punitive. 
        • This broad definition is the most common ground used by a law enforcement agency when it slaps the PSA on an individual.
      • The law was introduced by Sheikh Abdullah (Father of Farooq Abdullah) in 1978
      • It is often referred to as a “draconian” law.
      • Objective:
        • It was brought in to prevent timber smuggling and to keep the smugglers in prison.
      • Key Provisions:
        • It allows for administrative detention for up to two years “in the case of persons acting in any manner prejudicial to the security of the State”, and for administrative detention for up to one year where “any person is acting in any manner prejudicial to the maintenance of public order.
        • It comes into force when the Divisional Commissioner or the District Magistrate passes an administrative order.
        • After the amendments to the PSA in 2012, the detention of a person below the age of 18 was strictly prohibited under this Act. 
      • Advisory board:
        • Government has to set up an advisory board within 4 weeks of the detention order.
        • Board must determine if there are sufficient grounds for detention within 8 weeks.
      • Section 22 of the Act provides protection for any action taken “in good faith” under the Act: 
        • “No suit, prosecution or any other legal proceeding shall lie against any person for anything done or intended to be done in good faith in pursuance of the provisions of this Act.”
        • So, the District Magistrate who has passed the detention order has protection under the Act. 
      • Section 23 of the Act:
        • The government is empowered to “make such rules consistent with the provisions of this Act, as may be necessary for carrying out the objects of this Act”.
      • Outside J&K:
        • In August 2018, the Act was amended to allow individuals to be detained under the PSA outside the state as well.

    Issues and criticisms

    • Arbitrariness:
      • PSA is used arbitrarily against activists, journalists and separatists who are considered a threat to law and order without giving the opportunity to reconsider.
      • The Act does not distinguish between Minor and Major Offences.
      • Detaining authority need not disclose any facts about the detention.
    • Political misuse:
      • The law was misused widely and was repeatedly employed against political opponents by consecutive governments until 1990.
      • J&K’s political parties have often blamed each other for the rampant misuse of the PSA.
    • No Judicial Intervention:
      • PSA does not provide for Judicial review of detentions made despite numerous time high court orders for illegality and authorities further issuing successive detention orders.
        • It allows for detention without trial.
      • The detained person does not have the right to move a bail application before the court, and cannot engage any lawyer to represent him or her the detaining authority.
    • Habeas corpus petition:
      • The only way this administrative preventive detention order can be challenged is through a habeas corpus petition filed by relatives of the detained person
      • The High Court and the Supreme Court have the jurisdiction to hear such petitions and pass a final order seeking quashing of the PSA. 
      • However, if the order is quashed, there in no bar on the government from passing another detention order under the PSA and detaining the person again.
    • International Opinions:
      • Amnesty International report titled “Tyranny of a lawless law: Detention without trial” claimed PSA breached the International Human rights law.

    Habeas Corpus

    • It is a Latin term which means ‘to have the body of’
    • Under this the court issues an order to a person who has detained another person, to produce the body of the latter before it. 
    • The court then examines the cause and legality of the detention.
    • This writ is a bulwark of individual liberty against arbitrary detention.
    • The writ of habeas corpus can be issued against both public authorities as well as private individuals.

    Way Ahead

    • It is true that the Public Safety Act is a very strong law that empowers exclusive powers to the executive
    • The PSA also created a strong perception among the Kashmiris that they are second-class citizens.
    • We need to have better laws at our disposal and to conclude, the voices of Kashmir’s population must also be heard.

    Source: TH