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Reading time: 6-8 minutes.
Amidst the COVID-19 outbreak, other political news has not been getting the limelight which it calls for. One such news was that Omar Abdullah, former Chief Minister of J&K was released by the administration from the stringent Public Safety Act. The draconian PSA was imposed on him on February 6th, 2020, along with other prominent leaders such as PDP’s Mehbooba Mufti, NC’s Ali Muhammad Sagar and PPP’s Sartaj Madani.
They have been in preventive detention for six months since the revocation of Article 370 in J&K which ended on February 5th. As soon as they were exonerated of preventive detention, the Public Safety Act was inflicted on them. Earlier in September 2019, father of Omar Abdullah and a former CM of J&K, Farooq Abdullah was also detained under PSA. To understand the status quo of the current Kashmir Crisis, let us first imbibe in the history of PSA.
History of Public Safety Act, 1978
Public Safety Act is a defensive detention law that came into force in 1978. It has its roots in the British era too, but it entered into force in Independent India in 1954 as the Preventive Detention Act by J&K govt. It got ratified again numerous times before taking the shape of Jammu and Kashmir Public Safety Ordinance in 1977. It got amended again to become the act that we know today as the Public Safety Act. It was introduced by the then Chief Minister, Mr. Sheikh Abdullah but the rationale to implement it at that time was different. It was enacted to curb the timber smuggling and more importantly, to keep the smugglers ‘out of circulation’. In contrast, the law was misused widely and repeatedly against political opponents only after the 1990s.
During this time, the then Union home minister Mufti Mohammed Sayeed enforced the controversial Armed Forces (Special Powers) Act in the state in 1990, after which the PSA was used extensively to target alleged miscreants in Kashmir. On top of that, after the emergence of militancy, the J&K government frequently invoked the PSA to crack down on separatists. One such instance was after the killing of Hizbul Mujahideen commander Burhan Wani in July 2016 wherein scores of people were detained in Valley under PSA.
Most of the homegrown militancy in the aftermath of the post-Burhan Wani encounter killing in 2016 was also spurred as a direct impact of the abusive enforcement of the PSA. A chain can be seen that most of the recent militant leaders are found to have been arrested under the PSA at some point in their life. Even though it has gone through various amendments after 1978 where its regressive provisions were diluted, it continues to remain one of the most autocratic and exploitative legislations.
The provisions of the Public Safety Act are:
- It is an administrative detention law that allows detention of any individual for up to two years without a trial or charge.
- It allows for the arrest and the detention of people without a warrant, specific charges, and often for an unspecified period.
- It allows for administrative detention for up to two years “in the case of persons acting in any manner prejudicial to the security of the state”
- Detention for up to one year where “any person is acting in any manner prejudicial to the maintenance of public order
- Detention orders under PSA can be issued by Divisional Commissioners or District Magistrates.
- The detaining authority need not disclose any facts about the detention “which it considers to be against the public interest to disclose”
- Section 14 of the PSA allows for a nonjudicial Advisory Board to review detention orders and determine whether there is sufficient cause for detention.
- After the amendments made to PSA in 2012, the detention of a person below the age of 18 was strictly prohibited under this Act.
- According to Section 22, “no suit, prosecution or any other legal proceeding shall lie against any person for anything done or intended to be done in good faith” under the PSA.
- An individual detained under the PSA shall be produced before the magistrate within 24 hours.
Constitutionality of the law
An outcome of corrupt governance and the autocratic rule of Sheikh Abdullah’s National Conference (NC) – has already been slammed as a “lawless law” by Amnesty International. Ram Jethmalani, former Kashmir Committee chief, and former Union Law Minister, as “something we haven’t heard of even in Nazi Germany”. Keeping all this in consideration, National Panthers Party (NPP) Chief Patron Professor Bhim Singh filed a writ petition in the Supreme Court praying to declare Jammu and Kashmir Public Safety Act, 1978, as “invalid and ultra vires”.
The petitions read as” Jammu and Kashmir Public Safety Act, 1978, has become redundant after the deletion of Article 35-A from the Constitution of India as the aforesaid Act was enacted in the exercise of the power conferred under Article 35-A from the Constitution of India to the State Legislature”. The petition was submitted one day before the hearing of the plea of Sara Pilot against the detention of his brother under the Public Safety Act. Bhim Singh, who is a senior advocate of the Supreme Court and Executive Chairman of J&K Legal Aid Committee also said that there has been misuse of J&K Public Safety Act, and it violates the spirit of the Constitution and individual liberty as it has become redundant after the deletion of Article 35-A from the Constitution of India, thus taking away the soul of a democratic Constitution.
The PSA which was earlier brought to life by Sheikh Abdullah’s regime has been used for purposes different from the original one. It has been used extensively to suppress anybody alleged to be a threat to the security of the state or public order. It was misused a lot of times by the authorities, such as but not limited to, Burhan Wani case. Various amendments have been brought upon this act of legislation to relax its stringent provisions but it was recently challenged in the Supreme Court that slapping it on people after the revocation of Article 35-A is unconstitutional and therefore the whole legislation should be scrapped.
The future of this Act is now in the hands of the Supreme Court and various organizations such as Observer Researcher Foundation have stated that “Misuse of the PSA has resulted in large scale human rights violations in Kashmir. The PSA also created a strong perception among the Kashmiris that they are second class citizens. To win over the confidence of Kashmiris… repealing PSA would be a step in the right direction.”
Author: Nishant Nagori from Rajiv Gandhi National University of Law, Punjab.
Editor: Tamanna Gupta from RGNUL, Patiala.