A close look at the several provisions unravels unquestioned powers to the state that allows the curtailment of human freedoms: A comprehensive review
Illustration by Suhail Naqshbandi/ http://www.kashmirink.in
On October 10, 2019, The Indian Express reported that the Jammu and Kashmir government informed the J & K High Court that it has revoked the detention orders in response to habeas corpus petitions filed by 3 persons detained under the Jammu and Kashmir Public Safety Act (PSA).
What is the PSA, its genesis and intent? Why has it been called draconian? The law brought in ironically by the state’s first chief minister and premier, Shaikh Abdullah in 1978 to prevent timber smuggling (and detain smugglers in prison) allows the state to detain persons up to two years without trial. Similar to the central National Security Act (NSA ) but was enacted two years before the national law.
Conflicting reports also suggest that former chief minister of the state, Farooq Abdullah has also been booked under the Act since September 16, 2019. While the union home minister Amit Shad first claimed that Abdullah was free, the former chief minister publicly contradicted this statement.
In late August 2019, former IAS officer and founder of the Jammu & Kashmir People’s movement, Shah Faesal was detained at Delhi airport, prevented from flying abroad and slapped with the PSA. He is still under detention. Earlier in 2019, in the wake of the Pulwama “attack” in February, scores of detainees were slapped with the law and J & K governor even approved an amendment to the law to move detainees to jails outside the state. Keeping detainees away from their home and hearth further alienates populations and causes further hardships to family members and relatives.
JKLF leader, Yasin Malik and Hurriyat leaders like Masarat Alam have also been detained under PSA. Ironically, National Conference vice president and son of Dr Abdullah, Omar Abdullah had promised to appeal this controversial law if he came back to power in the state. But this assurance comes 31 years after the controversial law has been enacted.
The J & K High Court merely disposed of the petitions since the petitions did not survive post the revocation of the detention orders. While two of these petitions challenged the orders under section 8 of the Act (which means they were detained for actions prejudicial to public order or security), the third petition challenged the order under section 22 of the Act (which means the petition challenged that the government acted in good faith while making the order). There are about 250 habeas corpus petitions lodged with the J & K High Court presently and a majority of them are filed against detention orders under the PSA.
How does PSA work?
In the following segment we have done a brief section wise review of the Act in order to understand the implications of the Act and to understand why it has been termed as a “draconian law”.
A Review of the Jammu and Kashmir Public Safety Act (PSA)
The objective of the Act is stated as:
“Whereas it is necessary in the interest of the security of the State and public order to make law providing for measures hereinafter appearing”
The Act is short and precise containing merely 24 sections and majority of these are imperative to “achieve the goals”under the Act. The most critical ones have been reproduced below in order to understand the kind of powers that lie with the government and its agencies without due accountability. The implications of the law and its provisions have also been analysed.
| Main Sec-tion No. | Section Header | Provisions of the section (with sub-section No.) | Implication and/or Analysis |
| 3 | Prohibited places | (1) If as respects any place the Government considers it necessary or expedient that special precautions should be taken to prevent the entry of unauthorised persons, the Government may, by notified order, declare that place to be a prohibited place. | This section gives the government (nearly unchecked) power to declare any “place” as prohibited vide a notified order and any person, even unaware of such a notified status of the place can be imprisoned for contravention. |
| Punishment (sub-section) in case of contravention: (6) If any person is in a prohibited place in contravention of any of the provisions of this section, he shall be punishable with imprisonment for a term which may extend to one month or with fine or with both | |||
| 4 | Protected areas | (1) if the Government considers it necessary or expedient in the interests of the defence or security of the State to regulate the entry of persons into any area, it may by a notified order declare the area to be a protected are and thereupon, for so long as the order is in force, such are shall be protected area for the purpose of this Act | This section, like the above section, gives the Government the power to declare any “area” as protected and imprison any person acting in contravention. |
| Punishment (sub-section) in case of contravention: (4) If any person is in a protected area in contravention of any of the provisions of this section, he shall be punishable with imprisonment for a term which may extend to two months, or with fine, or with both | |||
| 6 | Power to prohibit circulation within the State or entry into the State of certain documents | (1) The Government, or any authority authorised by it in this behalf, if satisfied that such action is necessary for the purposes of preventing or combating any activity prejudicial to the maintenance of communal or sectarian, or regional harmony affecting or likely to affect public order, may by notified order, regulate, or restrict the circulation within the State, or prohibit or restrict the importation into the State, of any document;… | This section allows the Government to deem any document to be detrimental to communal, sectarian or regional harmony or even public order and can prevent its circulation within the State. The section also provides that a person may (within stipulated time) contend such an order and further appeal to the High Court if the same is not favourable. Evidently, the power thus granted is arbitrary and is an impediment to freedom of expression. |
| Punishment (sub-section) in case of contravention: (2) Any person who contravenes an order made under this Section shall be punishable with imprisonment for a term which may extend to three months or with fine, or with both. (3) in the event of disobedience of an order made under subsection(1) the Government or the authority issuing the order, may, without prejudice to the penality to which the person guilty of the disobedience is liable under sub-section(2), order the seizure of all copies of any such document. | |||
| 7 | Removal of doubts | For the removal of doubts, it is hereby declared that the restriction imposed by section 6 on the rights conferred by clause (1) of Article 19 of the constitution of India shall be deemed to be reasonable restrictions. | As mentioned above, the constricting section has been safeguarded by declaring it to be a reasonable restrictionunder Section 19 (2) of the Indian Constitution thus protecting it from judicial scrutiny for abrogation of fundamental rights under Article 19 of the Constitution. |
| 8 | Detention of certain persons | (1) The Government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to- (i) the security of the State or the maintenance of the public order (ii) – [1] *…that with a view to regulating his continued presence in the State or with a view to making arrangement for his expulsion from the State, it is necessary so to do, make an order directing that such person be detained. | This section is the one that gives unmitigated power to the state and makes the Act draconian. This section gives the Government power to detain a person without charge or trial or substantive evidence, power to detain any person who, the government deems to be prejudicial to public order. This allows execution of capricious actions having legal standing. Although the section further defines what “acting in any manner prejudicial to the maintenance of public order” means, the definition is full of vague implications and leaves a lot to interpretation. |
| 11 | Detention orders not to be invalid or in-operative on certain grounds | No detention order shall be invalid or inoperative merely on the ground- (a) that the person to be detained thereunder is outside the limits of the territorial jurisdiction of the officer making the order; or (b) that the place of detention of such person is outside the said limits. | This section gives absolute authority to the government to execute the order by removing any kind of territorial restriction on the location of the person or the place of detention, thus removing the difficulties in execution of the order. |
| 15 | Reference to Advisory Board | In every case where a detention order has been made under this Act, the government shall, within four weeks (from the date of detention under the order) place before the Advisory Board constituted by it under Section 14, the grounds on which the order has been made, the representation, if any, made by the person affected by the order and in case where the order has been made by an officer, also report by such officer under sub-section (4) of Section 8. | This section clearly implies that the government can keep the person detained for as long as four weeks, whereby the detained persons’ fundamental rights remain suspended at the whims of the government, without having to be accountable for its actions, thus increasing the Act’s scope for misuse. |
| 17 | Action upon report of Advisory Board | (1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient case for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith. | This section gives unlimited power to the Government in terms of deciding the period of detention of the person (maximum two years, subject to provisions). The Advisory Board can only confirm or reject the detention, which decision remains binding on the Government, but the term of detention remains the prerogative of the government, thus exposing such power to the dangers of abuse. |
| 19 | Revocation of detention orders | (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an earlier order of detention made against such person in any case where- (i) the earlier order of detention or its continuance is not legal on account of any technical defect; or (ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect… | This section grants the Government the power to re-issue a detention order on basis of same facts, whether or not earlier order was confirmed or rejected by Advisory Board has not been specified, hence it can be inferred that a person can be detained again and again, arbitrarily, for the same reasons, making it a tool for haphazard administration of law and order. |
| 22 | Protection of action taken under this Act | No suit, prosecution or any legal proceeding shall lie against any person for anything done or intended to be done in good faith in pursuance of the provisions of this Act | This section also safeguards the executive from legal action as challenging an order under this section would mean questioning the good faith of the public servant giving the order and a vague concept like “good faith” can be difficult to prove in court. |
*Only relevant sub-sections have been mentioned. AccessComplete Act here.
Purpose of the Act and Apparent Intention of the Legislature
The Act was enacted by the Sheikh Abdullah lead government in 1978 and has, since then been a subject of contention. A report published by Amnesty International states that in a written reply to the Legislative Assembly of Jammu and Kashmir in January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2400 PSA detention orders were passed, of which about 58% were quashed by courts.
There are several inferences that can be made about the intention of the legislature in passing the law and the kind of powers granted to the government. The Act allows detention of persons without trial or forming of charges. It allows the government to detain a person for as long as 4 weeks without having to produce them before an authority, in this case, an Advisory Board. The law provides very superficial means of redressal for the detenu and it is clear that the legislators intended to subdue to the detenu to a point where he could resort to legal proceedings only after a considerable period of time has passed, after facing the Advisory Board.
The detenu is also not permitted to engage a legal representation before the Advisory Board. The Act provides that the detenu be informed about the grounds of detention at the earliest, within 5 days or maximum 10 days of date of detention, but it also provides that reasons which are “against public interest” may not be disclosed. This gives the government an opportunity to state all grounds to be against public interest thus giving the detenu no defence in front of the Advisory Board.
Even the report of the Advisory Board is kept confidential and not disclosed to the detenu, except the part where the opinion of the Advisory board i.e. whether the order of detention is confirmed or rejected is communicated to the detenu.
The Law in action
The government has unabashedly used the PSA to curb activities of many prominent personalities at various occasions in the past. The Hindu reported that in August this year, former IAS officer and founder of Jammu & Kashmir People’s movement Shah Faesal was stopped from flying out of the country from the Delhi Airport and sent back to Srinagar, where he was detained under the PSA. In the wake of the Pulwama attack, scores of detainees were slapped with this law, and J&K Governor Satya Pal Malik had approved an amendment to move detainees to jails outside the State.
The Scroll recently reported that the J & K government had been acting in contravention of the PSA by detaining boys under the age of 18. As per the 2012 amendment of the Act, “person” shall not include a citizen of India who has not attained the age of eighteen years for being detained under clauses (a) and (a-1) of section 8. Yet, such detentions have taken place in the Valley ever since its lockdown imposed by the Central government. Despite of such actions of the government, which warranted quashing of the detention order of minors, the High Court only ordered a probe.
It is evident from the review of the Act as well as real incidents that the law has given the J & K government unprecedented powers of preventive detention of individuals thus allowing capricious behaviour in execution and institution of orders. Many a times in the past political parties have promised to repeal the Act if voted to power but none have accomplished the same.
As one reads section after section of the Act, it becomes evident that the intention of the legislature in formulating this law was to give unbridled powers to the state government for detention of any person under the guise of maintenance of public order and acting in interest of national security, both of which have myriad interpretations; thus leaving the detenu with no recourse to legal remedy for a considerable amount of time.