This article is written by Max Croson, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.
The rising instances of unprincipled insurgency and militancy in the state of Jammu and Kashmir has made public life a living hell. To curb such acts of terrorism the Public Safety Act, 1978 also known as PSA has been used so far. The central idea of the act is to prevent any person from doing any act which can be prejudicial to “the security of the state or the maintenance of the public order”. However, the instances of indiscriminate detention of civilians on the basis of only suspicion has been very controversial. The detention order of Mr. Farooq Abdullah was one such instance which sparked widespread debates throughout the country which questioned the objective of the act, given its stringent and vague ambit entrusting a lot of power and authority to the executive. Amnesty international terms it as a ‘Lawless law’ due the unscrupulous violations of human rights in Jammu and Kashmir, contrary to India’s stand in terms of advocating for human rights internationally. In this article we will analyze the various provisions under the Act and will also deal with the controversial nature of the act and some important judgements in this regard.
The Jammu and Kashmir Public Safety Act was enacted in 1978 by Sheikh Abdullah. The roots of this act can be traced to the Defence of India Act which was passed under Colonial Rule in 1915. The purpose of PSA was to curb the rising timber smuggling in the State of Jammu & Kashmir and keep the smugglers out of circulation. However, through the course of time the state of affairs in Jammu and Kashmir changed drastically due to strained relations with Pakistan. This led to rise in terrorism and insurgency in the Jammu and Kashmir.
The interest of the local public in Kashmir was in a state of jeopardy due to the Kashmiri youth joining forces with the militant groups which orchestrated terror attacks and incidents of stone pelting at the Indian Army. All this only led to the innocent civilians getting caught in the crossfire. This in turn forced the administration to use the wide ambit of the Public Safety Act Section 8, to detain people under suspicion of causing or abetting to cause public outrage and incitement on basis of caste, creed, religion, to disturb communal harmony or any other offence that may be against the national interest.
In the specific words of Section 8 it empowers the authorities to detain people “acting in any manner prejudicial to the maintenance of public order” i.e.
(i) promoting, propagating, or attempting to create, feelings of enmity or hatred or disharmony on grounds of religion, race, caste, community, or region;
(ii) making preparations for using, or attempting its use, or using, or instigating, inciting, or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting. provoking or abetting, disturbs or is likely to disturb public order;
(iii) attempting to commit, or committing. or instigating, inciting, provoking or otherwise abetting the commission of mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;
(iv) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order.
Section 8(2) of PSA empowers District Magistrates and Divisional Commissioners to authorize detention.
The aim and objective of this Act is to ensure public safety and prevention of insurgency, it still falls under the category of draconian and controversial Acts. The Public Safety Act has often been the centre of controversy due to unlimited powers of detention bestowed upon the administrative authorities which at times is a major cause of problems. The Act gives unlimited powers to the administrative authorities to detain any person under suspicion of danger to public interest.
As per Section 13(1) of PSA, the grounds of detention should be communicated to the detenu. The reasons for detention are:
- This shall be done by the authorities not later than 5 days in ordinary circumstances.
- In exceptional circumstances not later than ten days from the date of detention.
- This is to give the detained person a chance to represent himself against the order of detention in exercise of the fundamental right guaranteed under Article 22(5) of the Constitution of India.
But, at the same time Section 13(2) lays down that the authority need not disclose such facts to the detenu which it considers to be against public interest to disclose. Thus, this subsection can overpower the right of a detenu under Section 13(1).
In other words, an authority will not disclose the grounds of arrest to the individual or let him represent himself or consult a lawyer if the detaining authority suspects it to be against public interest, which takes away the right to file a bail application. Now, this can play out as a double edged sword. Since on one hand it grants the provision to protect the rights of the detenu and on the other hand has the provision to abrogate the same. This makes it a draconian Act opening up avenues for its misuse in application and implementation.
Moreover, Section 22 of the Act gives immunity against any order passed by the official or any person under the set provisions of the act since it is implied that the official had done it in good faith. So, no coercive action against officials under this act.
The Act was scrutinized the most last year and became a national issue when a series of house arrests and detentions were made under the provisions of the Public Safety Act. The political leaders of various opposition and separatist movement leaders were detained under this Act last year after the abrogation of Article 370. It is quite evident that the intent behind this move was to curb any instigation or protest movement by these powerful leaders to secure the public interest. Since there had been growing unrest in the valley on account of its special status revoked. This step by the government has been criticized a lot since the chaos remained still at large in the valley.
A big contention of the Public safety Act is with relation to Article 22 of the Indian Constitution. Article 22 of the constitution gives the provision for the detained or arrested be told the grounds for his arrest along with his right to consult a lawyer. Moreover, the person must be presented before a magistrate within 24 hours as a mandatory provision. The significance of these two provisions is that it saves any person from getting arbitrary arrests or detentions and keeping the powers of the executive in check. However, this does not apply to PSA since Article 22 sub clause (3) specifically states that the above provisions won’t be applicable “to any person who is arrested or detained under any law providing for preventive detention”.
The constitutionality of the provisions under the Public Safety Act have been a matter of debate for a very long time. Article 22 protects the rights of an individual against arrest and detention “in certain cases”. The words certain cases are quite crucial here since the provisions of this Article under certain cases read with its sub clause (3) gives immunity to the Public Safety Act and makes it constitutionally valid.
As per Section 18(1), the maximum period for detention shall be:
- 3 months in the first instance which may be extended up to 12 months from the date of detention on basis of person acting in any manner prejudicial to the maintenance of public order.
- 12 months from the date of detention in the case of smuggling of timber.
- 6 months which can be extended up to 2 years from the date of detention where a person acts in a manner prejudicial to the security of the State.
The Government has to refer the case to an Advisory Board within four weeks of passing a detention order.
Within 8 weeks of passing of the detention order the Advisory Board must deliver its opinion.
Section 19(1) of the Act states that a detention order can be revoked or modified by the Government at any time regardless of an order made by the authorized officers as per Section 8(2). However, sub-section (2) adds a little twist to the revocation. It says that there shall be no bar to making a fresh order of detention against a person on the same facts as an earlier order of detention where the order is revoked on grounds of illegality due to technical defect.
In other words, Section 19(2) allows for the authorities to arrest and detain a person again on the same facts even after revocation of detention. This creates a vicious cycle and a huge loophole in the Public Safety Act. Moreover, it opens up avenues for harassment to the same individual being detained again and again.
The remedial scope against an order of the Public Safety Act is quite narrow which makes it quite difficult for an individual to meet ends of justice. However, the constitutional safeguards can be used to challenge a detention under PSA. Filing writ petition of Habeas Corpus under Article 32 to the Supreme Court and under 226 to the High Court. However, the scope of challenge is limited to grounds of procedural violations or irregularity.
If the High Court is convinced of the fact that there is miscarriage of justice and blatant violation of an individual liberty contributing to an illegal detention, the High Court or Supreme Court can quash the detention order.
- In Shoib Ahmed Czor vs State of J&K the authority failing to inform the detenu of his right to make representation was taken as a ground for quashing the detention order. The J&K court while relying on Rekha Vs State of Tamil Nadu AIR 1999 SC 618 observed that, “Since Clause (3) of Article 22 specifically excludes the applicability of Clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.”
- In Bilal Ahmed Hastiwal vs State of J&K, the J&K court observed that while passing of the detention order stress was laid on the involvement of the detenu in offences under Sections 307 of the then Ranbir Penal Code (repealed and now only IPC applicable throughout India), ¾ Exp. Sub. Act, 16, 18 and 20 ULA(P) Act. However, the absconding nature of authorities in supplying relevant material documents such as “dossier and other connected documents” relied upon by the detaining authority while passing the detention order to the detenu. And such failure on part of the detaining authority was held contrary to Article 22(5) of the Indian Constitution and was further considered as a ground for quashing the detention order.
However, the High Court does not undertake substantive review of the merits of the detention. The Courts generally do not review the “subjective satisfaction” formed by the administration regarding cause of detention, except where clear discrepancies are visible to the court on part of the detaining authority.
The District Magistrate or any other qualified official as per the act has a legal obligation to analyze all the circumstances of a case.
If a person already under police custody is detained under the Public Safety Act, the officer has to record compelling reasons for detention.
If a person is detained multiple times under the PSA, the officer must produce fresh facts while passing the subsequent detention order.
The Public Safety Act unlike other preventive detention acts is on a different footing. Since it is relatively far stringent as it can be exercised/executed on the basis of an order of the executive. But why do we need such overpowering laws? The answer to this can be traced back to the founding days of our country. Our founding fathers have said that the national interest is one of the most important aspects of any democracy. It is the job of the administration to work towards ensuring a smooth functioning of a nation and secure the national interest. The individual interests are a part of the national interests of a country.
However, whenever there is conflict of interest and wherever we have to balance the liberty of an individual and the interest of the country, the interest of the country will come first. A nation cannot compromise the safety and security of the whole nation to give leverage to individual interests. Various examples are in the form of preventive guidelines supported by our Indian Constitution. Such as restriction to individual rights and interests by imposing reasonable restrictions on the fundamental rights enshrined in Part III of the Constitution. In closing, it is true that the Public Safety Act is a very strong law which empowers exclusive powers to the executive. However, if we look at the current situation of Jammu and Kashmir then it is more than clear that the state machinery is in complete jeopardy due to chaos and confusion within the general public due to militancy which is not a normal situation. Often which has resulted in loss of innocent lives. There are constitutional safeguards for normal conditions. However, in cases of abnormal situations, we need to have more than powerful laws at our disposal and the Public Safety Act is one of them.
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