Written by Talent KAS

Related Topics: Internal Security, Preventive Detention

Why in News?

Former Jammu and Kashmir Chief Minister Farooq Abdullah has been detained under the Jammu and Kashmir Public Safety Act.

What is the Public Safety Act?

  • The Act was introduced by the government of Sheikh Abdullah as a tough law to prevent the smuggling of timber and keep the smugglers “out of circulation”.
  • This is a preventive detention law that allows the State government to detain any person above the age of 16 without trial for a period of two years.
  • After the emergence of militancy, the J&K government frequently invoked the PSA to crack down on separatists.
  • It is similar to the National Security Act, but this was enacted two years before the NSA came into being.
  • 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.
  • The Act which received the assent of the J&K Governor on April 8, 1978, is often referred to as a “draconian” law.

Detention under PSA

  • Detention orders under PSA can be issued by Divisional Commissioners or District Magistrates.
  • The detaining authority need not disclose any facts about the detention “which it considers to be against the public interest to disclose”.
  • 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.”
  • Under 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”.

What happens when PSA is used?

  • Within four weeks of passing the detention order, the government has to refer the case to an Advisory Board.
  • This Advisory Board will have to give 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.

Criticisms against the Act

  • The law was misused widely, and was repeatedly employed against political opponents by consecutive governments until 1990.
  • J&K parties have often blamed each other for the rampant misuse of the PSA.
  • In August 2018, the Act was amended to allow individuals to be detained under the PSA outside the state as well.
  • It has been used against human rights activists, journalists and others who are considered as a threat to the law & order.
  • Usually when a person is arrested, they have the right to legal representation and can challenge the arrest.
  • But, when a person is arrested under the PSA, they do not have these rights before the Advisory Board unless sufficient grounds can be established that the detention is illegal.
  • 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.
  • As per Amnesty report published, which analysed over 200 case studies of PSA detainees between 2012 and 2018, former Chief Minister Mehbooba Mufti had informed the J&K Assembly that between 2007 and 2016, over 2,400 PSA detention orders were passed, of which about 58% were quashed by the courts.

[Source: The Hindu, Indian Express]


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