Jammu Kashmir and the PSA (Public Safety Act)

An insight on the J&K's PSA and types of detentions allowed in India

 Jammu Kashmir and the PSA (Public Safety Act)

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• The story: The PSA law was introduced by Sheikh Abdullah (father of Mr Farooq Abdullah) in 1978, to prevent timber smuggling, and catch the smugglers and put them in prison. This preventive detention law allowed the State government to detain a person up to two years without trial. In a sense, it's similar to the National Security Act (NSA), but enacted two years before the NSA came into being.
• Tasted it himself: Even before Dr. Abdullah was detained under the PSA, he claimed to be under house arrest following the abrogation of certain provisions of Article 370, like other politicians in the State. The Home Minister Amit Shah had said in Parliament that Dr. Abdullah was in his home of his own free will (and that he could not forcibly get him to the Parliament), which Dr. Abdullah refuted clearly later.

1. In police custody, a person has to be produced before a magistrate within 24 hours of detention. But the PSA allows the State to hold a person without producing them in court.
2. While the J&K government did not give details as to why Dr. Abdullah was detained under the PSA, other politicians questioned the detention and asked if this action was precipitated by the habeus corpus plea.

• What happens after PSA is used: Within four weeks of passing the detention order, the government has to refer the case to an Advisory Board. This Board gives its recommendations within eight weeks of the order. If the Board thinks that there is cause for preventive detention, the government can hold the person up to two years.

1. The person detained has limited rights. Usually when a person is arrested, they have the right to legal representation and can challenge the arrest. But under the PSA, they do not have even these rights before the Advisory Board unless sufficient grounds can be established that the detention is illegal.
2. There have been cases where the High Court has interfered and quashed the detention.
3. According to Section 13(2), the detaining authority need not even inform the detained individual as to the reason for the action, if it decides that it goes against public interest.

• Pulwama attack 2019: In the wake of the Pulwama attack in Feb 2019, many detainees were slapped with this law, and then J&K Governor Satya Pal Malik had approved an amendment to move detainees to jails outside the State. Hurriyat leaders like Masarat Alam, JKLF leader Yasin Malik were detained under this law. Incidentally, National Conference vice president and son of Dr. Abdullah, Omar Abdullah had promised once to repeal the controversial Act if he came back to power in the State!
• Preventive Detention: The law and issue concerning and connected to Preventive Detention is an issue of personal liberty and human rights. Preventive detention refers to taking into custody an individual who has not committed a crime yet but the authorities think he is a threat to law and order.

1. The Supreme Court in 'Alijav v. District Magistrate, Dhanbad', stated that while criminal proceedings relate to punishing of a person for an offence committed by him, preventive detention does not relate to an offence.
2. In 'Ankul Chandra Pradhan v. Union of India', the Court stated that the object of preventive detention is not to punish but prevent the detenue from doing anything that is prejudicial to the security of the state.
3. The power to make Preventive Detention laws in India comes from the Constitution itself which empowers the Parliament to make such laws for reasons connected with Defence, Foreign Affairs or the Security of India. Parliament has exclusive legislative powers.
4. The Union and the States have concurrent legislative powers for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community.
5. Such detention involves custody without any criminal trial, moreover these laws need not follow the procedural guarantees which are fundamental to the detention of an individual in the normal course. The Parliament has enacted several laws in this respect which in addition to the notorious Preventive Detention Act include: (i) The National Security Act, Section 13, 1980 (provides for administrative detention for a period of up to one year), (ii) The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) (provides for administrative detention for a period of up to six months); (iii) The Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, Section 13, 1980 (six months); and (iv) The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, Section 10, 1988.

• Article 22: This Article grants protection to persons who are arrested or detained. Detention is of two types, namely, punitive and preventive.

1. Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court.
2. Preventive detention means detention of a person without trial and conviction by a court.
3. Article 22 has two parts — the first deals with the cases of ordinary law and the second with the cases of preventive detention law.
4. Punitive detention - 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 authorises further detention
5. Preventive detention - The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention; The grounds of detention should be communicated to the detenu; The facts considered to be against the public interest need not be disclosed; The detenu should be afforded an opportunity to make a representation against the detention order
6. The 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, hence, the original period of three months still continues.

• EXAM QUESTIONS: (1) Explain the concepts of preventive and punitive detentions. How are they different? (2) What are the various provisions in the J&K Public Safety Act (PSA)? What was the original intent? (3) Explain the two Articles 21 and 22, of the Indian constitution, clearly.

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