Introduction
The Public Safety Act (PSA) is used in Jammu and Kashmir to combat militancy and insurgency, but its arbitrary detention of civilians has been controversial. Amnesty International calls it a ‘Lawless law’ due to the frequent human rights violations. This article analyzes the provisions, controversies, and significant judgments of the act.
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Brief background of Public Safety Act, 1978
Initially enacted to curb timber smuggling in Jammu and Kashmir, the Public Safety Act has been widely used to detain individuals suspected of causing public outrage and inciting communal disharmony. The rise of terrorism and insurgency in the region has led to the broader application of the act, causing controversy over its arbitrary nature and potential for human rights violations.
Section 8 of the Public Safety Act
Section 8 of the PSA allows authorities to detain individuals who are deemed to be acting in a way that is harmful to public order, such as promoting hatred or inciting violence based on religion, race, caste, community, or region. It also includes those who prepare or incite the use of force or commit offenses that could lead to imprisonment for seven years or more. The District Magistrates and Divisional Commissioners have the power to authorize detention under Section 8(2) of the PSA.
What makes the Public Safety Act so controversial?
Despite its goal of ensuring public safety and preventing insurgency, the Public Safety Act is considered a controversial and draconian law. The Act provides unlimited powers to administrative authorities to detain any person suspected of posing a threat to the public interest, leading to potential problems. Although Section 13(1) of the Act requires authorities to communicate the grounds of detention to the detenu, Section 13(2) permits the authorities to withhold information deemed to be against the public interest. This provision undermines the fundamental right of the detenu to represent themselves, consult a lawyer, and file a bail application. Thus, the Act’s application and implementation can be misused, raising concerns about its draconian nature. Additionally, Section 22 of the Act grants immunity to officials against any order passed under its provisions, implying that the official acted in good faith. Last year, the Act gained national attention when political leaders, including opposition and separatist leaders, were detained under its provisions after the revocation of Article 370, leading to criticism of the government’s use of the Act to curb unrest in the valley.
Is the Public Safety Act constitutionally valid about Article 22?
The Public Safety Act has been the subject of controversy, particularly about Article 22 of the Indian Constitution. Article 22 ensures that a person who is detained or arrested is informed of the grounds for their detention, has the right to consult with a lawyer, and must be presented before a magistrate within 24 hours. These provisions protect individuals from arbitrary arrests and detentions and provide a check on the powers of the executive. However, these protections do not apply to the Public Safety Act, as Article 22 subclause (3) specifies that they do not apply “to any person who is arrested or detained under any law providing for preventive detention.” The constitutionality of the Public Safety Act’s provisions has been a matter of debate, but the Act is considered constitutional because it falls under the purview of “certain cases” outlined in Article 22.
For how long can a person be detained under the Public Safety Act?
Under Section 18(1) of the Public Safety Act, the maximum period for detention is 3 months initially, but it can be extended up to 12 months for threats to public order, up to 12 months for smuggling of timber, and up to 2 years for activities prejudicial to the security of the State. The government must refer the case to an Advisory Board within 4 weeks, and the Advisory Board must deliver its opinion within 8 weeks of the detention order being passed.
Can the detention orders be revoked?
According to Section 19 of the Public Safety Act, the Government has the power to revoke or modify a detention order at any time, even if it goes against the authorized officers’ order. However, if the revocation is due to technical defects or illegality, Section 19(2) allows the authorities to detain the same individual again on the same grounds. This creates a loophole in the Act, allowing for repeated detention and harassment of the same person.
Remedies available to the detenu
Although challenging a detention order under the Public Safety Act can be difficult, an individual can use constitutional safeguards to challenge it. This includes filing a writ petition of Habeas Corpus to the Supreme Court under Article 32 or to the High Court under Article 226. However, the scope of the challenge is limited to procedural violations or irregularities. If the High Court finds that there has been a miscarriage of justice and a blatant violation of an individual’s liberty resulting in illegal detention, it can quash the detention order. However, the High Court does not undertake a substantive review of the merits of the detention and generally does not review the “subjective satisfaction” formed by the administration regarding the cause of detention, except where clear discrepancies are visible to the court on the part of the detaining authority.
Conclusion
The Public Safety Act is a unique law that grants immense power to the executive, but it is necessary to balance individual and national interests. The founding fathers of the country recognized that national interest is of utmost importance, and the administration must ensure it for a smooth functioning nation. In cases of conflict, national interest must prevail, and reasonable restrictions may be imposed on fundamental rights to ensure public safety. While the PSA may seem overbearing, it is necessary in cases of abnormal situations such as the current situation in Jammu and Kashmir, where militancy has caused chaos and loss of innocent lives. The PSA provides exclusive powers to the executive to maintain law and order in such situations.
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