UPSC PRELIMS 2020: Jammu and Kashmir Public Safety Act

Topic: Jammu and Kashmir Public Safety Act

Topic in Syllabus: Indian Governance

Context:

Former Jammu and Kashmir Chief Minister Farooq Abdullah has been detained under the state’s stringent Public Safety Act (PSA), which enables authorities to detain any individual for two years without trial.

 

Background:

The Jammu & Kashmir Public Safety Act, 1978 is a preventive detention law, under which a person is taken into custody to prevent him or her from acting in any manner that is prejudicial to & the security of the state or the maintenance of the public order

It is very similar to the National Security Act that is used by other state governments for preventive detention.

 

Preventive detention is meant to be preventive, not punitive.

  • It comes into force by an administrative order passed either by Divisional Commissioner or the District Magistrate or not by detention order by police based on specific allegations or for specific violation of laws.
  • The PSA allows for detention of a person without a formal charge and without trial.
  • It can be slapped on a person already in police custody; on someone immediately after being granted bail by a court; or even on a person acquitted by the court.
  • Person who is detained under the PSA need not be produced before a magistrate within 24 hours of the detention
  • The detained person does not have the right to move a bail application before a criminal court, and cannot engage any lawyer to represent him or her before the detaining authority.
  • The High Court and the Supreme Court have the jurisdiction to hear such petitions and pass a final order seeking quashing of the PSA
  • There cannot be prosecution or any legal proceeding against the official who has passed the order.
  • The DM has to place the detention order within four weeks before an advisory board, consisting of three members including a chairperson who is a former judge of the High Court.

 

Constitutional Safeguards against PSA:

  • Article 22(a) of the Constitution states that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
  • Article 22(b) states that every person arrested and detained shall be produced before the nearest magistrate within a period of 24 hours (excluding the time necessary for the journey from the place of arrest to the court) and no such person shall be detained beyond this period without the authority of a magistrate.
  • However, Article 22(3) (b) allows for preventive detention and restriction on personal liberty for reasons of state security and public order.
  • Supreme Court has held that in order to prevent &misuse of this potentially dangerous power, the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguard is mandatory and vital;
  • Therefore, the DM has to show that the detention order follows the procedure established by law.
  • Supreme Court has also held that when a person already under police custody is slapped with the PSA, the DM has to record &compelling reasons& for detaining that person.
  • All the material on the basis of which the detention order has been passed, the Supreme Court has held, should be provided to the detained person for making an effective representation; and the grounds of detention has to explained and communicated to the person in the language understood by the detained person.

 

Sample Question:

The constitution of Jammu & Kashmir was framed by

a)      The same constituent assembly which framed the constitution of india

b)      The special constituent assembly set up by parliament

c)       The special constituent assembly set up by state

d)      None of the above

Answer: c)