Editorial Notes

[Editorial Notes] Rising apprehensions on Public Safety Act

The Public Safety Act (PSA), 1978, of Jammu & Kashmir is an administrative detention law that allows detention of any individual for up to two years without a trial or charge without a warrant, specific charges, and often for an unspecified period of time.
By IASToppers
February 19, 2020

Contents

  • Introduction
  • What is Public Safety Act?
  • Why is it considered draconian?
  • Misuse of PSA
  • Criticism of the law
  • Conclusion

Rising apprehensions on Public Safety Act

For IASToppers’ Editorial Simplified Archive, click here

Introduction:

Recently, Jammu and Kashmir’s Public Safety Act (PSA) has been slapped on two more former chief ministers, Omar Abdullah and Mehbooba Mufti, as well as half a dozen other state political leaders in the Union territory now, stirring the debate regarding the heated law.

What is Public Safety Act?

  • The Jammu and Kashmir Public Safety Act (PSA), 1978 is a preventive detention law, under which 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”.
  • It is very similar to the National Security Act that is used by other state governments for preventive detention.
  • Under the PSA, a person can be detained initially for 12 days.
  • Any detention beyond three months is ratified by the PSA Advisory Board.
  • It allowed for detention of any person above the age of 16 for up to two years in the case of persons acting prejudicial to the security of the State and for detention up to one year where any person is acting prejudicial to the maintenance of public order.
  • After the amendments were made to the PSA in 2012, the detention of a person below the age of 18 was strictly prohibited under this Act.
  • According to Section 22, “no suit, prosecution or any other legal proceeding shall lie against any person for anything done or intended to be done in good faith” under the PSA.
  • It comes into force by an administrative order passed either by Divisional Commissioner or the District Magistrate, and not by a detention order by police based on specific allegations or for specific violation of laws.
  • The Advisory Board is a non-judicial body established under Section 14 of the PSA to review detention orders and determine whether there is sufficient cause for detention.

Why is it considered draconian?

  • PSA allows for detention of a person without a formal charge and without trial.
  • It can be slapped on a person already in police custody; on someone immediately after being granted bail by a court; or even on a person acquitted by the court and detention can be up to two years.
  • Unlike in police custody, a person who is detained under the PSA need not be produced before a magistrate within 24 hours of the detention.
  • The detained person does not have the right to move a bail application before a criminal court, and cannot engage any lawyer to represent him or her before the detaining authority.
  • 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 is no bar on the government passing another detention order under the PSA and detaining the person again.
  • The District Magistrate who has passed the detention order has protection under the Act, which states that the order is considered “done in good faith”.
  • Therefore, there cannot be prosecution or any legal proceeding against the official who has passed the order.
  • Also, after an amendment last year by the Governor, persons detained under the PSA in Jammu & Kashmir can now be detained in jails outside the state.

Misuse of PSA:

  • The law was being misused widely and was repeatedly employed against political opponents by consecutive governments until 1990.
  • In August 2018, the Act was amended to allow individuals to be detained under the PSA outside the state as well.

Criticism of the law:

1. Enormous power to the government:

  • Under the Act, government is empowered to make rules consistent with the provisions of the Act.
  • However, global human rights organisations have noted that no Rules have so far been framed to lay down procedures for the implementation of the provisions of the PSA.

2. Arbitrary detentions:

  • Between 2007 and 2016, over 2,400 PSA detention orders were passed of which about 58% were rejected by the courts. Hence, most of these dentations are done arbitrarily.
  • PSA does not provide for a judicial review of detention.

3. Threatening Right to dissent:

  • PSA has been used against human rights activists and others who are considered as a threat to the law & order thus threatening the Right to dissent.

4. Vague definition:

  • The terms under which a person is detained under PSA are vague and include a broad range of activities like “acting in any manner prejudicial to the security of the State” or for “acting in any manner prejudicial to the maintenance of public order”.

5. Unbridled powers to the authorities:

  • The detaining authority need not disclose any facts about the detention which it considers to be against the public interest to disclose.
  • The vagueness provided in the act gives unbridled powers to the authorities. The detainees, therefore, are effectively debarred from contesting the legality of their detention.

Conclusion:

  • Since, dissent is the lifeblood of any democracy underlined by our Constitution and Judiciary, hence, the rising apprehensions over the act must be taken care of. There should be balance between the imposition of the law for public safety and for the sole purpose of crushing the dissent. Keeping in mind the above concerns, the evaluation of the provisions of the law and the procedural safeguards becomes necessary.
[Ref: Indian express, The Hindu]
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