This Article is written by Anchal Kushwah, student of ISBR Law College.
Under Article 1 of the Indian Constitution, it is provided that India, that is Bharat, shall be a union of states but when it comes to the state of Jammu and Kashmir, it is somewhat different in terms of laws and ordinance, authorities, legal framework, and so many other aspects too. As a result of which there were chaos and unacceptable illegal activity happening around the state. That brought us to make some special laws and ordinance for the state of Jammu and Kashmir in order to protect it from various illegal activity and terrorism. PSA, i.e. Public Safety Act, 1978 is that rule which was undertaken in the year of 1978, with a very clear mindset of peace and harmony in the state, maintenance of the public order, and also to maintain the security in the state. In contrast, this order came out with some negative aspects too, which also became a topic of debates and discussions. As a result of which this Act was needed to amend again and the latest amendment was done by the Shri Narendra Modi Government in the year 2020.
WHAT IS THE PUBLIC SAFETY ACT,1978?
The practice of incarcerating accused individuals before trial on the assumption that they would not be in the best interest of society – specifically that they would likely commit an additional crime if they were released – is said to be known as preventive detention. As per Section 151 of the Code of Criminal Procedure, 1973 a police officer is empowered enough with some special power to arrest any person, without orders from a magistrate and without a warrant, if it appears to such officer, that such person is designed to commit any cognizable offense that cannot be prevented otherwise.
The said Act was introduced by Sheikh Abdullah, then Chief Minister of Jammu and Kashmir in 1978, as a tough law to prevent the smuggling of timber and keep the smugglers ‘out of circulation’. It was also initiated to prevent the state from terrorism and terrorist attacks which became so common and usual in those days. The following law was an attempt to allow the government to detain any person above the age of 16 without a trial for a period of two years.
- Section 22 of the Public Safety Act, 1978 provides protection for any action taken ‘in good faith’ under the Act. No suit, prosecution, or any other legal proceeding shall be initiated against any person for anything done or intended to be done in good faith or in the pursuance of the provisions of the Act.
- Detention orders under the said Act can be issued by the Divisional Commissioner or District Magistrate only.
- The Public Safety Act, 1978 provides for detention in two ways – (a) the administrative detention for two years ‘in the case of persons acting in any manner prejudicial to the security of the state’ and (b) for one year ‘where any person is acting in any matter prejudicial to the maintenance of the public order.’
- Under Section 23 of the said Act, the government is empowered to make such rules consistent with the provision of this Act, as may be necessary for carrying the objectives of the Act.
LIMITATIONS OF THE PUBLIC SAFETY ACT,1978.
In the year 1978, when the subsequent Act was passed, it had an apparent motive that it would prevent smugglers from operating and end terrorism in the state. However, soon after in 1990 due to various political reasons and so much vagueness in the Act, it was misused negatively. As soon as the above Act was introduced in the state, the political rivalries between the leaders became evident. Right from the introduction of the Act till the present day, this Act has been misused widely. The same was repeatedly employed against political opponents by consecutive governments in the year 1990.
The terms under which a person could be detained under the Public Safety Act, 1978 were so vague that it provided unbridled powers to all the authorities. The detainees, therefore, were effectively debarred from the legality of their detention.
- The Public Safety Act, 1978 does not provide any judicial review of arbitrary detention. In order to revoke the Jammu and Kashmir High Court’s orders for the release of persons detained under the Act, the state authorities must issue successive detention orders. This in a way ensures prolonged detention of the people.
- The said Act has been used against human rights activists, journalists, separatists, and others who are considered as a threat to law and order. Now, this also includes those persons who were trying to go against any political leader, and as a result of which there was a very high probability that respective journalists, separatists, or any activists might be arrested under PSA. This in every way is a violation of their fundamental rights as well as their constitutional rights.
- Any person detained under the Public Safety Act, 1978 has very limited rights. Usually, when a person is detained, he/she has a right to legal representation but the same feature is not available if an individual is charged under the said Act unless sufficient grounds are satisfied that the detention made is illegal. There have been cases where the High Court has quashed the detention but those cases are very few in numbers.
LATEST AMENDMENTS MADE IN THE PUBLIC SAFTEY ACT, 1978
In the year 2020, the former Chief Ministers of Jammu &Kashmir, Mr. Omar Abdullah and Ms. Mehbooba Mufti were booked under the Public Safety Act, 1978. The administration of the Jammu &Kashmir invoked the Public Safety Act, 1978 to extend the detention of these two senior politicians along with some other politicians. The changes that took place after the amendments were are mentioned below:
- The Central Government has mandated that the detainees who have been the permanent residents of Jammu &Kashmir shall not be lodged in jails outside the erstwhile states. This provision was inserted under Section 10 of the Act.
- The administration can also send the detainees outside the state of Jammu &Kashmir jails only if they can provide a reasonable cause of doing such action to the courts, such as overcrowding in J&K jails, etc. Foreigners like militants from Pakistan or Afghanistan have been in the past sent to jails outside J&K. Now with the omission of this particular provision, the Jammu &Kashmir residents can now be sent outside to other states’ jails.
- Further, the Central Government has amended Section 14 of the said Act. Under this section, a Committee can be constitutes to deal with all matters related to the Act.Earlier under the Act, it constitute an Advisory Committee comprising a Chairman, who has been qualified for being a judge of a High Court and two other members who have been appointed as a judge of a High Court. However, according to the latest amendment made by the NarendraModi Government, a search-cum selection committee, consisting of a Chief Secretary and Administrative Secretaries of the Home and Law Department shall select the Committee.
- In the new order, it has also been stated that no Sitting Judge of the High Court or the Session Judge or the District Court shall be appointed as the Chairman of the member of the Board except in consultation with the Chief Justice of the High Courtof Jammu & Kashmir.
IMPACT OF NEW ORDERS ON THE PUBLIC SAFETY ACT, 1978
As per the new orders, it has been stated that the migrants are now eligible and they can apply for jobs in the state of Jammu & Kashmir. They just need to register themselves by the Relief and Rehabilitation Commissioner so that can avail a domicile certificate and become eligible to apply for a job in the state. The government has also asked the respective authorities of Jammu &Kashmir to prepare a detailed list of immovable property of all the migrants which might have been sold “under distress” (security concerns) and asked the administration to take appropriate action to evict unauthorized occupants from such properties.
- AzaanJavaid, Modigovt amends J&K’s Public Safety Act, withdraws privileges given to former CMs, April 1, 2020. https://theprint.in/india/modi-govt-amends-jks-public-safety-act-withdraws-privileges-given-to-former-cms/392983/.
- Jammu And Kashmir Public safety Act, 1978, Act. no 6of 1978, https://www.latestlaws.com/bare-acts/state-acts-rules/jammu-kashmir-state-laws/jammu-kashmir-public-safety-act-1978/.
- What is Public Safety Act all about? Sep 06 2019, https://www.asianage.com/india/all-india/160919/what-is-public-safety-act-all-about.html.
- Why Public Safety Act must go, Feb 17, 2019, https://www.greaterkashmir.com/news/opinion/why-public-safety-act-must-go/.