Jammu and Kashmir’s ex-Chief Minister, Farooq Abdullah, has faced detainment under the state’s Public Safety Act (PSA). This public safety regulation constitutes a preventative detention law, designed to prevent any individual from committing acts that could jeopardize state security or disturb public order.
Under this law, any person can be held in custody for up to two years. The detention order may be issued either by the Divisional Commissioner or the District Magistrate.
Challenging Detention Under PSA
The only legal recourse available to contradict an administrative preventative detention order is through the filing of a habeas corpus petition. This can be filed by the relatives of the detained individual. Both the Supreme Court and the High Court have jurisdiction over such petitions, enabling them to pass a final order for the PSA quashing.
However, if the order gets quashed, the government faces no restrictions on issuing another detention order under the PSA, leading to a potential re-detainment. No legal proceeding or prosecution can be launched against the official who originally passed the order.
Habeas Corpus Explained
Habeas Corpus, a Latin term literally translating to ‘to have the body of’, is a key safeguard against arbitrary detention. It serves to protect the liberty of the individual and can be issued against private individuals and public authorities alike.
This writ, however, is not issued in the following circumstances:
– If the detention is lawful
– If the proceedings are due to contempt of court or legislature
– If the detention is carried out by a competent court
– If the detention occurred beyond the court’s jurisdiction
PSA vs the National Security Act (NSA)
Similar to the NSA utilised by other states for preventative detention, the PSA empowers state or central government to detain any person who poses a threat to national security. The government can also detain a person if they are believed to be capable of disrupting public order or maintaining supplies and services deemed essential for the community.
Under NSA, a person may be detained for up to 12 months. This period, however, can be extended if fresh evidence is found.
Preventive Detention and Constitutional Provisions
Preventative detention serves the purpose of confining a person who could potentially commit crimes in the future or escape prosecution. Contrary to ‘being arrested’, which indicates that a person has been charged with a crime, preventative detention does not have such necessity.
Comparatively, punitive detention punishes individuals for their illegal actions. Article 22(1) of the Constitution specifies that arrested individuals have the right to consult and be defended by any legal practitioner of their choice.
However, under Preventive Detention Laws like the PSA, the detained person cannot file a bail application in a criminal court or hire a lawyer to represent them before the detaining authority.
When an individual is arrested, they must be produced before a magistrate within the next 24 hours. In the case of ‘preventive detention’, this period extends to three months.
The Legal Framework Around Detention
| Article | Content |
|---|---|
| Article 22(2) | Demands every person arrested and detained to be produced before the nearest magistrate within 24 hours (excluding necessary travel time from the arrest place to the court) and bans any person from being detained beyond this period without a magistrate’s authority. |
| Article 22(3)(b) | Allows preventive detention and personal liberty restriction for state security and public order reasons. |
| Article 22(4) | Stipulates no law providing for preventive detention shall authorise a person’s detention for longer than three months unless an Advisory Board reports sufficient cause for extended detention or the person is detained in accordance with any law made by the Parliament. |
Democracy, Detention, and Controversy
No democratic country worldwide has incorporated preventive detention as an integral part of its constitution, as in the case of India. Governments sometimes exercise such laws as a form of extra-judicial power, leading to a fear of arbitrary detentions.
Despite these controversies, the Supreme Court has stated that to avert misuse of this potentially dangerous power, the law of preventive detention must be strictly interpreted. The meticulous compliance with procedural safeguards is thus mandatory and essential.
