Ahead of the Home Minister’s visit to Jammu and Kashmir (J&K), approximately 700 individuals have been detained, a few of whom are under the stringent Jammu & Kashmir Public Safety Act (PSA), 1978.
About Jammu & Kashmir Public Safety Act (PSA)
The PSA allows for an individual to be detained for up to two years without a trial based on an executive order, if their actions could potentially jeopardize the security of the State or public order. The detention order is typically passed by either the Divisional Commissioner or the District Magistrate.
The Procedure of Challenging Detention
The only means of challenging an administrative preventive detention is through a habeas corpus petition filed by the relative of a detained person. This can be heard and decided upon by the High or Supreme Court. However, even if the order is quashed, the government holds the right to pass another detention order under the PSA and detain the individual again.
Issues Surrounding the PSA
The PSA has been highly criticized due to its allowance of detention without a formal charge or trial. It permits detention of a person already in police custody, or immediately following bail being granted by a court. There is also no obligation to present the detained individual to a magistrate within 24 hours of detention. Additionally, the detained person cannot file a bail application, nor engage any lawyer to represent him or her before the detaining authority.
Details of Section 8 of the PSA
Section 8 provides various reasons for detention, from promoting feelings of hatred based on religion, race or community, to inciting such acts. While it offers detention of up to one year for disruption of public order, or two years for actions prejudicial to state security, it makes no distinction between minor and major offences.
The Supreme Court’s View on the PSA
The Supreme Court has stated that the District Magistrate must consider all circumstances before depriving an individual of personal liberty under the PSA. If a person already under police custody is detained under this Act, “compelling reasons” must be recorded. While a person can be repeatedly detained under this Act, new facts must be presented with each subsequent detention order.
Habeas Corpus
This Latin term literally translates to ‘to have the body of’. It is a protective measure against unlawful detention and can be used against both public authorities and private individuals. There are exceptions, however: it is not issued where the detention is lawful, the proceeding is for contempt of a legislature or a court, the detention is by a competent court, or the detention is beyond the jurisdiction of the court.
Way Forward
Following J&K’s transition to a union territory, the PSA should align with pan-India legislation. The continued detention of regional leaders could hinder peace and a political solution in J&K. The Supreme Court has warned of preventing misuse of this powerful law, insisting on ‘meticulous compliance’ with procedural safeguards. With criticism of the government potentially being seen as a threat to law and order, the future of democracy is increasingly up for debate.
