-by Vanya Francis & Anirudh Agrawal
Jammu and Kashmir Public Safety Act (PSA), 1978, often regarded as an arbitrary piece of legislation, encapsulates the entire Jammu and Kashmir region. It finds its roots in the British era when the Defence of India Act 1915 was enacted as an emergency criminal law for repressing the nationalist and revolutionary activities during and in the aftermath of the First World War. Later, it was replaced with Public Security Act 1946, a tool to quell the Quit Kashmir Movement. After India freed itself from the clutches of the British Rule, the 1946 Act was replaced with a temporary Preventive Detention Act 1954 by the Jammu and Kashmir government. It underwent various amendments, finally giving birth to the present Act in place. PSA was legislated by the Sheikh Abdullah government for detaining persons for the crimes that weren’t yet codified anywhere, especially the illegal timber smuggling menace in the state.
PSA 1978 is a preventive detention law, under which a person is taken into custody to prevent him or her from acting injuriously against the security of the state or the maintenance of the public order. This Act was brought to pacify the sensitive situation prevailing in the State. But over the years, the State has witnessed how the powers under this act have been used tyrannically which seems to have defeated the purpose of this legislation in the first place. The following parts of this article scrutinizes the Act from the lens of the social and constitutional morality and deals with the intricacies of the Act to provide a more practical perspective to it.
Is it exploitative?
PSA, 1978 bypasses every basic human right and it threatens the security of every citizen who comes under the ambit of this Act. The Act states that anyone who is considered as a threat to the “security” and “integrity” of the state, can be detained and this detention is termed as a “preventive detention”. There are certain provisions which make up the sole reason this act can be labelled as draconian. There is no charge required, there is no trial, and one can be detained even if he or she is acquitted by the court. A habeas corpus petition is the only measure a person can take but even if the order is quashed by the High Court or Supreme Court (under Articles 226 and 32 respectively), there is no restriction which could stop the authorities from slapping another detention on the person. Rather than becoming a protective law for the state, the Act has been reduced to a mere tool that is used by different parties when they attain power in the state. A very controversial part of this process is the Advisory Board, which is headed by a chairperson (who is or has been a Judge of the High Court) and two other members (who are, or have been, or are qualified to be appointed as Judges of the High Court). These three are appointed by the discretion of a panel of three bureaucrats led by the chief secretary of the state in consultation with the Chief Justice of the High Court (After the amendment made in May 2018 by PDP – BJP government). To sum up all things stated above and to also consider the fact that most of the detainees are either directly or indirectly politically active and furthermore share a dissenting opinion towards the ruling government, it leads us to a conclusion that since the Act is majorly used with an exploitative motive, its sheer existence becomes highly questionable.
Should it be constitutionally valid?
Many sections of it also deem to be highly violative of many fundamental rights as enshrined in the Indian Constitution as well as the basic human rights given in the International Covenant on Civil and Political Rights (ICCPR), which are as follows:
Section 8 (1)(a)(i) of the Act gives the Government the authority to detain a person if he/she deems to be a threat or acts in a manner which is prejudicial to the maintenance of public order or the security of the state. The Act, however, fails to give a proper definition or meaning to the terms “public order” and “security” and gives absolute powers in the hands of Divisional Commissioners and District Magistrate to detain the person concerned for a maximum period of 12 days.
On the contrary, Article 22 (2) of the Indian Constitution provides that every person who is detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such an arrest and cannot be detained beyond this time without the authority of a magistrate. Moreover, Article 22 (5), of the same, provides that any person under preventive detention, under any law, shall be provided with the earliest opportunity to make a representation against such order.
Section 9 (3) of ICCPR also states that anyone detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within reasonable time.
Section 16 (1) gives the detainee an opportunity to present his/her case on her own to the Advisory Board. However, Section 16(5) expressly stipulates that the detainee cannot be represented by any legal practitioner in any matter connected with the reference to the Advisory Board and all its matter shall remain confidential, barring the part that the Board shall regard as specified information.
However, Article 22 (1) of the Indian Constitution provides any person arrested or detained with the right to consult, and to be defended by, a legal practitioner of his choice.
Article 14 (3) (d) of the ICCPR also provides the detained person with the right to communicate with and be represented by a counsel of their choice.
Section 22 of the Act provides absolute indemnity to a person from suit, prosecution or any other legal proceeding if that person does or intends to do anything in good faith in pursuance of the provisions of this Act. Since it has been witnessed how brutally this Act has been exploited to the whims and fancies of the Government in power, it leaves no remedy for a person who has been detained arbitrarily if it can be proven to the Advisory Boards that the person wasn’t detained in good faith.
Although Act provides for filing a writ petition of habeas corpus in Supreme court and High Court (under Articles 32 and 226 respectively), people with insufficient resources are usually unable to prove the lack of good faith involved by the person who detains them, and thus this right does not serve its purpose.
Moreover, Article 2 (3)(a) of ICCPR, all individuals have the right to seek remedy under international human rights law standards.
Section 18 of the Act provides for a maximum period for detention i.e. three months (which can be extended up to twelve months), twelve months, and six months (which can be extended up to 2 years) for acting prejudicial to the maintenance of public order, for timber smuggling and for acting in any manner which is prejudicial to the security of the State, respectively. In case of a foreigner, the Government has the power to extend the detention even further if his/her expulsion from the State has not been made possible. 
Article 22 (4) of the Indian Constitution states that a person cannot be detained under any law for a longer period than three months unless an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court, has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.
Therefore, after comparing the aforementioned sections of the Act with the domestic and international standards of human rights, we find it difficult to put it along the lines of the Indian Constitution and the ICCPR to prove its validity.
“If I find the constitution being misused, I shall be the first to burn it.” -Bhimrao Ramji Ambedkar. This statement proves how big of a crime it is to exploit the constitution. A law that does not uphold even the basic principles of natural justice is not even close to being called constitutionally valid. All the points that were discussed above act as a path for us to understand the scenario which has been in the union territory of Jammu and Kashmir for the past 42 years. On the other hand, one can also argue that there is a different variant of the story. As it is commonly known that the valley has always been a house on fire, therefore, laws such as these become a necessity to keep the fire in control. Still, some sections are quite out of place and the transition of Jammu and Kashmir from a state to a union territory also raises a question whether such a law should be sustained anymore. After one juxtaposes all these points, he/she would find it difficult to answer the question: is PSA, 1978, exploitative and legally invalid?
Views are personal.
Image has been provided by the author.
ABOUT THE AUTHOR
Vanya Francis and Anriudh Agarwal are both currently pursuing law from Hidayatullah National Law University, Raipur.
 Bhat, Mahmad Aabid, Insight Turkey, Pg. 55.
13/DMB/PSA/2017; 11/DMB/PSA/2017; 12/DMB/PSA/2017, on file with Amnesty International India.
04/DMB/PSA/2018, 05/DMB/PSA/2018 AND 06/DMB/PSA/2018, on file with Amnesty International India.
Jammu and Kashmir Public Safety Act, 1978, S 13(2).
Jammu and Kashmir Public Safety Act, 1978, S 14 (2).
Jammu and Kashmir Public Safety Act, S 8 (1) (a) (i).
 INDIA CONSTI. art. 22, cl. 2.
 INDIA CONSTI. Art. 22, cl. 5.
 ICCPR, art. 9 (3).
Jammu and Kashmir Public Safety Act, S 16 (1).
Jammu and Kashmir Public Safety Act, S 16 (5).
 INDIA CONSTI. Art. 22, cl. 1.
 ICCPR, art. 14 (3)(d).
Jammu and Kashmir Public Safety Act, S 22.
ICCPR, art. 2(3)(a).
Jammu and Kashmir Public Safety Act, S 18.
 INDIA CONSTI. art. 22, cl. 4.