Javeed Beigh
The rising instances of unprincipled insurgency and militancy in the state of Jammu and Kashmir had created a chaos in the life of public of Jammu and Kashmir. In order to curb the incidents of terrorism the Public Safety Act, 1978 which is also known as PSA has been enacted by the govt. The central idea of the act was 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 cases of indiscriminate detention of civilians of Jammu and Kashmir on the basis of only suspicion have been very controversial. There has been a number to detentions which had led to controversies not only in the State of Jammu and Kashmir (now the Union Territory of Republic of India) but also all over the various forums and media in India. The detention order of former CM of Jammu and Kashmir Mr. Farooq Abdullah was one of such instance which sparked widespread debates throughout the country and questioned the objective of the act and given its stringent and vague ambit entrusting a lot of power and authority to the executive. The Act has been termed as ‘Lawless law’ by various agencies due violation of human rights in Jammu and Kashmir which is contrary to India’s stand in terms of advocating for human rights internationally.
The Jammu and Kashmir Public Safety Act had come into origin in 1978 by Sheikh Abdullah the Ex-Chief Minister of Jammu and Kashmir. The purpose of PSA was to curb the rising smuggling of Timber in the State of Jammu & Kashmir and keep the smugglers out of circulation. 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 young boys joining forces with the militant groups which orchestrated terror attacks and incidents of stone pelting at the Indian Army. All this also only led to the civilians getting caught in the crossfire. Section 8 of the Public Safety Act empowers the authorities to detain people “acting in any manner prejudicial to the maintenance of public order in following manner are An act of promoting, propagating, or attempting to create, thought of enmity or hatred or disharmony on grounds of religion, race, caste, community, or region in the State, Causing preparations for using, or attempting its use, or inciting, or otherwise abetting the use of force where such preparation, or attempting to instigate someone against the state and provoking someone for disturbing the public peace, Attempting to commit, or committing, or instigating someone by inciting and provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life and imprisonment for a term extending to seven years or even more, where the commission of such offence disturbs, or is likely to disturb public peace, Committing or attempting to commit, or committing or instigating and provoking or otherwise abetting the commission of mischief within the meaning of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order.
The period of detention has been mentioned in the Act and it is which is sufficient to curb any act which is against of the interest of the state and now the national interest. As per Section 18(1), The Government has to refer the case to an Advisory Board within one month of passing a detention order and within two months of passing of the detention order the Advisory Board must deliver its opinion within time frame. The maximum period for detention shall be as three months or 90 days in the first incident which may be extended up to one year from the date of detention on basis of person acting in any manner which is prejudicial to the maintenance of public order and peace, One year or Twelve months from the date of detention in case of smuggling of timber, Six months which can be extended up to 24 Months or two years from the date of detention where a person acts in a manner prejudicial to the security of the State.
The act gives the powers to the stake holders to revoke any detention order so that anyone who is not a culprit of instigating any act which is against the interest of the state or the security of the state can prevented. As per Section 19(1) of the Act 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) is completely opposite to the right and 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. Section 19(2) allows for the authorities to arrest or detain a person again on the same facts. Moreover, it opens up avenues for harassment to the same individual being detained again and again. The main objective of this Act is to ensure public safety and prevention of insurgency. However, it still falls under the category of controversial Acts. The Public Safety Act has often been the centre of controversy due to powers of detention bestowed upon the administrative authorities which at times is a major cause of problems as there have been a number of cases of arrest on the ground of credibility on nation interest. The PSA gives unlimited powers to the authorities to detain any person under suspicion of danger to public interest. If we see Section 13(1) of PSA, as per it, the grounds of detention should be communicated to the individual who is detained. However at the same time Section 13(2) lays down that the authority need not to disclose the facts to the individual which it considers to be against public interest to disclose. 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 state interest, which takes away the right to file a bail application. Thus, this subsection can overpower the right of a person who is detained under Section 13(1). Now, this can act as a double edged weapon. At one side it grants the provision to protect the rights of the person who is detained and on the other side has the provision to abrogate the same. This makes it an ambiguous Act opening up avenues for its misuse in application and implementation. Moreover, Section 22 of the Act protects 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.
The Act was scrutinized the most last few year and became a national issue when a series of house arrests and detentions were made under the provisions of the Public Safety Act. Following have been main causes of controversy are Article 22 of Indian Constitution There has been 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 next 24 hours as a mandatory provision of the law. 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 has 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”. Abrogation of Article 370 after abrogation of Article 370, state of Jammu and Kashmir has become the integral part of India and is now been administered as Union Territory of Republic of India. As Jammu and Kashmir become the integral part of the country there should be now such act which applies to the state of Jammu and Kashmir previously. As The political leaders of various opposition and separatist movement leaders were detained under this Act last year after the abrogation of Article 370. The intent behind this move was to curb any instigation or protest movement by these powerful leaders to secure the public interest. Since there have been growing unrest in Kashmir on account of its special status revoked. This step by the government has been criticized a lot by the public of Kashmir since the chaos remained still at large in the valley, Unlawful detentions there have been a number of cases wherein individuals have been detained unlawfully without any clear proof of any involvement in any act which can be prejudicial to “the security of the state or the maintenance of the public order”. Due to many instances of indiscriminate detention of civilians on the basis of only suspicion has been very controversial.
The state of Jammu and Kashmir has always been integral part of India. However due to non-availability of clear cut policy on the state there have always been controversies that Jammu and Kashmir is not integral part of India. As credibility of People of Kashmir towards India has not yet proved, Act like PSA plays vital role to stop such act which can be prejudicial to “the security of the state or the maintenance of the public order”. After the abrogation of article 370 many political leaders of various opposition and separatist movement leaders were detained under this Act to curb any instigation or protest movement by these powerful leaders to secure the public interest. There are many political leaders in Kashmir who advocates the ownership of Pakistan over Kashmir and keep singing the song of friendship with Pakistan and terrorists. The Public Safety Act plays vital role to curb such separatists and pro Pakistan political leaders.
There have been a number of recommendations that since Jammu and Kashmir is now the union territory of India, PSA should have been brought in line with the all India legislation. Now as Article 370 has been abrogated by BJP led Govt of India, this is the right time to ensure strengthening the PSA so that pro Pakistani leaders and separatists just not dare to perform any act which can be prejudicial to the security of the state or the maintenance of the public order. The Supreme Court of India has directed that in order to prevent the misuse of this Act the authorities should utilise their power meticulously in compliance with the procedural safeguard. As Jammu and Kashmir are the Union territory of India there should be rules which are applicable to other states and Union Territories of India.