The recent surge in the number of Habeas Corpus petitions, following the abrogation of special status (under Article 370 of the Constitution) in the erstwhile state of Jammu & Kashmir in August 2019, has placed an unusual burden on the Jammu & Kashmir High Court. The petitions were primarily filed against detentions under the J&K Public Safety Act (PSA), 1978.
Background Information
Post the abrogation of special status, preventive detention laws were activated leading to the detention of thousands of people from across the Kashmir valley. Among those detained, a considerable number were held under the PSA, while others were booked under the National Security Act (NSA) 1980 and Unlawful Activities (Prevention) Act 1967.
Current Status of Habeas Corpus Petitions Against PSA
Upon reviewing case records, it was revealed that approximately 61% of Habeas Corpus petitions spanned over 3-4 hearings, often resulting in dismissal or settlement. However, the court quashed detention orders in 17 cases due to procedural inadequacies on the government’s part while invoking the PSA.
Decoding the J&K Public Safety Act (PSA), 1978
The J&K Public Safety Act, 1978, is a form of preventive detention law, which permits the custody of an individual to prevent actions which might jeopardize state security or public order. The detention period can extend to 2 years, and the order is passed by either the Divisional Commissioner or the District Magistrate.
Fighting Detention under PSA
The sole method to challenge administrative preventive detention orders under the PSA is filing a Habeas Corpus petition by the detainee’s relatives. These petitions fall within the jurisdiction of both the High Court and Supreme Court. Once the order is quashed, however, the government is not barred from issuing another detention order under the PSA, thus initiating the process anew. No legal actions can be taken against the official who passed the order.
Habeas Corpus: An Overview
The Latin term ‘Habeas Corpus’ translates to ‘to have the body of’. Upon receiving a Habeas Corpus petition, the concerned court orders the alleged detainer to present the detained individual. The court then scrutinizes the grounds and legality of the detention. This writ serves as a crucial safeguard against arbitrary detention and can be issued against both public authorities and private individuals.
However, certain conditions prohibit the issuance of this writ, including lawful detention, contempt proceedings against a legislature or a court, detention by a competent court, and detention beyond the court’s jurisdiction.
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