Jammu & Kashmir Public Safety Act

  • Recently, the Former Jammu & Kashmir Chief Minister Dr. Farooq Abdullah was detained under the State’s Public Safety Act.
  • The law was introduced by Sheikh Abdullah (Farooq Abdullah’s father) in 1978 to prevent timber smuggling, and keep the smugglers in prison.

About Public Safety Act (PSA)

  • Definition: The Jammu & Kashmir Public Safety Actempowers the government to detain a person up to two years without a trial in order 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.
  • Way of Enforcement:It comes into force by an administrative order passed either by Divisional Commissioner or the District Magistrate or not by any detention order by police based on specific allegations or for specific violation of laws.
  • Scope of Detention: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.
  • Limitations: A person who is detained under the PSA need not be produced before a magistrate within 24 hours of the detention and 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.

Challenge against Detention

  • It can be challenged is through a habeas corpus petition filed by relatives of the detained person
  • The Supreme Court and the High Court have the jurisdiction to hear such petitions and pass a final order seeking quashing of the PSA.
  • In case, if the order is quashed, the government can pass another detention order under the PSA and detain the person again.

Habeas Corpus

  • It is issued under the Article 32(2) by the Supreme Court for the enforcement of any of the rights conferred by Part III of the Constitution.
  • It is the most valuable writ for personal liberty which means, “Let us have the body”.
  • It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or otherwise.
  • If the Court is convinced that the person is illegally detained, it can issue orders for his release.
  • The writ can be issued against both the State and private individual or organizations.
  • The writ has only one purpose, to set at liberty a person who is confined without legal justification.

Constitutional Provisions against Preventive Detention

  • Article 22 of the constitution provides safeguard against preventive detention.
  • The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law:
    • Right to be informed of the grounds of arrest
    • Right to consult and be defended by a legal practitioner
    • Right to be produced before a magistrate within 24 hours, excluding the journey time
    • Right to be released after 24 hours unless the magistrate authorizes further detention
  • The second part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law. This protection is available to both citizens as well as aliens and includes:
    • The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a High Court.
    • The grounds of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed.

Preventive detention laws made by the Parliament:

  • Preventive Detention Act, 1950. Expired in 1969.
  • Maintenance of Internal Security Act (MISA), 1971. Repealed in 1978.
  • Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.
  • National Security Act (NASA), 1980.
  • Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA), 1980.
  • Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995.
  • Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988.
  • Prevention of Terrorism Act (POTA), 2002. Repealed in 2004.

Way Forward

  • India is one of the few countries in the world whose Constitution allows for preventive detention during peacetime without safeguards that elsewhere are understood to be basic requirements for protecting fundamental human rights.
  • Preventive detention as enshrined under Article 22 strikes a devastating blow to personal liberties. It also runs afoul of international standards. Article 4 of the International Covenant on Civil and Political Rights (ICCPR) - which India has ratified admittedly permits derogation from guaranteeing certain personal liberties during a state of emergency.