Jammu and Kashmir Public Safety Act

Any Public Safety Act seeks to make provision for the safety of the public and the maintenance of public order.

Does the Constitution of India have provisions for such law?

Jammu and Kashmir Public Safety Act (PSA) is a preventive detention law rendered legal under Art.22 of the Constitution of India.

What is abnormal about such preventive detention laws?

Such laws deny the detainee the three safeguards available to all others in India against safeguards

• Information about the reasons for arrest being given to the detainee
• Freedom to have legal assistance
• Being produced before the nearest judicial officer within 24 hours, exclusive of the time to travel.

For how long can a detainee be held under the   Jammu and Kashmir Public Safety Act (PSA) 1978 without trial?

2 years

Is that allowed under the Art.22?

Yes. While the Constitution itself says such preventive detention should be normally limited to a period of three months, Parliament has the power to make it longer. For example,  under the National Security Act (NSA), maximum period for which one may be detained is 12 months.

Why is the PSA described as `draconian’?

• It allows the government to detain any person above the age of 16 without trial for a period of two years.
• In 2018, the Act was amended to allow individuals to be detained under the PSA outside the state as well.
• detaining authority need not inform the detainee the reasons for detention, if it decides that it goes against public interest.

What are the safeguards within such preventive detention laws?

Normally, if the period of detention is sought to be extended beyond 3 months, it has to be approved by an Advisory Board of High Court judges- serving or retired.

For the J&K PSA, within four weeks of passing the detention order, the government has to refer the case to an Advisory Board. This Advisory Board will have to give its recommendations within eight weeks of the order. If the Board thinks that there is cause for preventive detention, the government can hold the person up to two years without trial.

Does the detainee have the right to seek legal assistance under the PSA?

When a person is arrested under the PSA, no such right is available unless sufficient grounds can be established that the detention is illegal. Occasionally, High Court does interfere to quash the orders.