Jammu and Kashmir Public Safety Act, 1978

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Public Safety Act, 1978
Jammu and Kashmir Legislature

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Territorial extent

Jammu and Kashmir

Enacted by

Governor

Enacted

8 April 1978

Status: In force

The Jammu and Kashmir Public Safety Act, 1978 (PSA) is a preventive detention law under which a person is taken into custody to prevent them from acting harmfully against "the security of the state or the maintenance of the public order" in the Indian state of Jammu and Kashmir. Whereas PSA applies only to Jammu and Kashmir, it is very similar to the National Security Act that is used by the central and other state governments of India for preventive detention.[1]

It was introduced by the then-Chief Minister, Sheikh Abdullah, in 1978 to ostensibly stop the smuggling of timber. However, the political motives behind the law became clearer when Sheikh Abdullah used it for the first time against political rivals.Template:Sfn Since its usage in the late 1970s, it is still being used today for "the security of the state".Template:Sfn[2] Following the bifurcation of Jammu and Kashmir in 2019, PSA was one of the state laws which was retained under the Jammu and Kashmir Reorganisation Act of 2019.[3]

In 2015, the government made public the figure of 16,329 persons having been detained under the act since 1988, nearly all from Kashmir.[3] National Crime Records Bureau records only 16 women detentions in the period 1995-2008.[4] In February 2020, a petition was filed in the Supreme Court of India by Bhim Singh of the Jammu and Kashmir National Panthers Party terming PSA "as dead and ultra vires".[5]

Background and history

Preventive detention in India

The Preventive Detention Act of 1950 came into force within a month after the Constitution of India came into force.[6] While enacted for only one year, it was renewed year after year until 31 December 1969. The next major preventive detention legislation came in the form of the Maintenance of Internal Security Act of 1971.[6]

Currently the provision for preventive detention in India exists under the Code of Criminal Procedure, which draws its roots from laws in British India.[7][8] The Jammu and Kashmir Public Safety Act of 1978 is only one of the acts in India that cater to prevention detention at a state level. While some states have their own preventive detention acts, there are four central acts covering preventive detention at a national level: the National Security Act (NSA) of 1980, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) of 1974, the Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities Act of 1980, and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.[8] The time duration of detention permitted under these acts varies from 24 hours to over a year.[7]

Legal history of PSA

The Public Safety Act has its roots in the Defence of India Act of 1915, passed during British rule,[9][10] and later in the 1946 Public Security Act which was used by the British to repress the Quit Kashmir Movement.Template:Sfn This was replaced in 1954 with a temporary Preventive Detention Act by the Jammu and Kashmir government, which was again ratified in 1958 followed by numerous amendments leading to the Jammu and Kashmir Public Safety Ordinance in 1977. This was then amended into the 1978 Public Safety Act enacted by Sheikh Abdullah.Template:Sfn The 1978 PSA was amended in 1987, 1990, 2012, and as recently as August 2018 to allow individuals to be detained outside the state.[11]

Legal provisions

The Public Safety Act 1978 consists of five chapters and 24 sections.[12] The five chapters cover:

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CHAPTER I Preliminary
CHAPTER II Access to certain premises and areas
CHAPTER III Maintenance of communal and regional harmony
CHAPTER IV Power to make orders detaining certain persons
CHAPTER V Miscellaneous

Chapter II of the act allows the state to limit access to certain places, designating them as "prohibited places" and "protected areas". Violators can be fined and punished. Chapter III allows the government to forbid the circulation of harmful documents.[10] Chapter IV of the act details "detention of certain persons" including those who qualify as a foreigner or "a person residing in the area of the State under the occupation of Pakistan" to prevent them "from acting in any manner prejudicial to... the security of the state or the maintenance of public order" or those involved in smuggling or abetting the smuggling of timber or liquor.[10]

Notably there is a provision, Grounds of detention severable, (10.A.a) that goes on to state that the:[12]

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order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are–– (a) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reasons whatsoever...

In the act the meaning of timber is elaborated: "'Timber' means timber of Fir, Kail, Chir or Deodar tree whether in logs or cut up in pieces but does not include firewood".[12]

Timber smuggling

Script error: No such module "Labelled list hatnote". Timber smuggling is a major threat in Jammu and Kashmir.[13] By some estimates this trade is worth tens of millions pounds a year.[14] The smuggling industry involves bureaucrats, families of ministers, and traders.[14] In 2006, the Forestry Minister of the state said there are isolated cases in the forestry department, police, and army which have a connection with smugglers.[15] In 2016, more than 700 people were booked for timber smuggling in the state, including 75 forestry officials.[16] Out of these, eight persons were detained under the Public Safety Act (PSA) for repeated forestry offences.[16] In 2019, fifteen timber smugglers were arrested during nocturnal raids.[17]

Ostensibly, to help curb timber smugglers the Jammu and Kashmir Public Safety Act was passed in 1978.[10]

Implementation

While the PSA was initially portrayed as an act to combat timber smuggling in the state, the act has been used to quell dissent and "keep people out of circulation".[10] According to a Human Rights Watch report in 1990: "the act establishes a legal procedure which, while technically consistent with international standards, in practice falls short of international due process and fair trial standards".[19] The report gives an example of the grounds on which the PSA was applied on a person in 1987:[19]

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Besides being a member of JEI (Jamaat-e-Islami) an organisation which is anti-national in character, [you] have always been challenging the accession of the State with the Union of India... You and your party men propagate and advocate among the people of the State that they have yet to decide their future which can only be done through plebiscite...

— District Magistrate, Baramulla to Abdul Rashid Hajam

During PSA detention, the detainee can be lodged in any suitable prison or subsidiary jail (such as a house) in India without a warrant, trial, or court hearing for a maximum of one or two years.[lower-alpha 1][21][11] The law has been criticized for allowing arbitrary detentions and immunity from prosecution.[22]

Numerous people have been detained under the PSA in the recent past, including three former Chief Ministers of Jammu and Kashmir—namely Farooq Abdullah, Omar Abdullah (Farooq and Omar are the son and grandson respectively of Sheikh Abdullah[23][24]), and Mehbooba Mufti.[25][26] Notably, Omar Abdullah, who is currently detained under the act, refused to revoke the act during his tenure as Chief Minister, saying that there are enough inbuilt safeguards to prevent the act's misuse.[27] Others include Masarat Alam, Yasin Malik, Asiya Andrabi and Shah Faesal.[28] Shah Faesal was booked under PSA in 2019 and 2020 for a number of reasons, including "soft separatism".[29][30] The dossier reads:[29]

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The subject advocates the idea of soft separatism through his articles, tweets and social media posts, which on several occasions have attracted response, amounting to a potential threat to public order.

In February 2020, a petition was filed in the Supreme Court of India by Bhim Singh of Jammu and Kashmir National Panthers Party terming PSA "as dead and ultra vires."[5]

Statistics

In 2015 the government made public the figure of 16,329 persons having been detained under the act since 1988, nearly all from Kashmir.[3] National Crime Records Bureau records only 16 women detentions in the period 1995-2008.[4] In 2010, an Amnesty International report estimated there had been 10,000 to 20,000 arrests under the act since its inception.[31][25][32]

In 2016, around 600 people were detained under PSA orders.[31] The courts have annulled hundreds of detention orders over the years.[25] Masarat Alam's was one of the detention orders quashed in December 2016.[31] Data from an RTI revealed that between April 2016 and December 2017, 99.40% or 998 cases were found to be suitable for detention by the Advisory Board; however, in the same time period, the Jammu and Kashmir High Court annulled the detention orders in 81% of the admitted 941 cases.[33][34]

Following the Jammu and Kashmir Reorganisation Act of 2019, numerous people were detained under PSA and CrPC; and as of 11 March 2020, 396 persons were still detained under PSA.[35]

Criticism

During a preventive detention case under PSA in 1982, the Supreme Court of India said: "danger looms large that the normal criminal trials and criminal courts set up for administering justice will be substituted by detention laws often described as lawless law".[10]

Indian lawyer and constitutional expert A. G. Noorani said PSA is "patently, manifestly and demonstrably unconstitutional", adding that it is a way of bypassing "civilized jurisprudence" and "a devious way to imprison political opponents".[31] "The upper limit on the period of detention is frequently violated" notes historian Mridu Rai.[36] Mohmad Aabid Bhat writes in Insight Turkey that the excuse of "public order" and "security" is being used to justify inhumane laws such as PSA.Template:Sfn

A report by Observer Research Foundation titled "Life in Kashmir after Article 370" dated 28 January 2020 recommended the immediate repeal of the PSA.[2]

Notes

  1. In other states in India the National Security Act applied, which has a maximum detention period of one year.[20]

References

  1. The Indian Express (17 September 2019). "Explained: What is Jammu and Kashmir's Public Safety Act?". Retrieved 12 March 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  2. 2.0 2.1 Wani, Ayjaz (28 January 2020). "Life in Kashmir after Article 370". Observer Research Foundation. Retrieved 12 March 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  3. 3.0 3.1 3.2 Ahmad, Mudasir (28 January 2020). "How the Public Safety Act Continues to Haunt Kashmir". The Wire. Retrieved 12 March 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  4. 4.0 4.1 Amnesty International (2011). A 'Lawless Law': Detention Under The J&K Public Safety Act. Amnesty International. Retrieved on 12 March 2020. Archived on 16 April 2019.
  5. 5.0 5.1 "Plea challenging Jammu and Kashmir Public Safety Act filed in Supreme Court". Deccan Herald. PTI. 13 February 2020. Retrieved 12 March 2020.CS1 maint: others (link)<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  6. 6.0 6.1 Harding, Andrew; Hatchard, John (19 October 1993). Preventive Detention and Security Law: A Commparative Survey. Martinus Nijhoff Publishers. p. 61. ISBN 978-0-7923-2432-4.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  7. 7.0 7.1 M K, Rakesh; Chatrath, Dhruv (3 May 2018). "Detention without a crime". The Statesman. Retrieved 13 March 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  8. 8.0 8.1 Devi, B. Uma (24 February 2012). Arrest, Detention, and Criminal Justice System: A Study in the Context of the Constitution of India. Oxford University Press. ISBN 978-0-19-908863-8.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  9. Hashmi, Syed Junaid (1 May 2007). "Jammu And Kashmir Public Safety Act-1978". countercurrents.org. Retrieved 24 February 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  10. 10.0 10.1 10.2 10.3 10.4 10.5 Chakravarty, Ipsita. "In Kashmir, a law for timber smugglers has become a way to keep people 'out of circulation'". Scroll.in. Retrieved 13 March 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  11. 11.0 11.1 "Explained: What is J&K Public Safety Act (PSA)?". The Indian Express. 16 September 2019. Retrieved 16 February 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  12. 12.0 12.1 12.2 "Public Safety Act, 1978" (PDF). indiacode.nic.in. Retrieved 13 March 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  13. Javaid, Azaan (24 December 2019). "J&K wants Modi govt to amend Indian Forest Act to book timber smugglers under stringent PSA". ThePrint. Retrieved 13 March 2020caution<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  14. 14.0 14.1 Burke, Jason (14 July 2010). "Kashmir fears forests will disappear through 'timber smuggling'". The Guardian. ISSN 0261-3077. Retrieved 13 March 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  15. "Timber smuggling in J&K being checked". The Times of India. 16 March 2006. Retrieved 13 March 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  16. 16.0 16.1 "700 Booked for Timber Smuggling, 75 Forest Officials Suspended in J&K". Outlook India. 27 January 2017. Retrieved 13 March 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  17. "15 timber smugglers arrested during nocturnal raids in north Kashmir's Sopore". Greater Kashmir. 21 July 2019. Retrieved 13 March 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  18. "Environment and Forests". State Level Bankers' Committees (JK). Retrieved 13 March 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  19. 19.0 19.1 Goldston, James; Gossman, Patricia (1991). Human Rights in India: Kashmir Under Siege. Human Rights Watch. p. 117. ISBN 978-1-56432-010-0.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  20. Singh, Soibam Rocky (16 February 2019). "What is National Security Act?". The Hindu. Retrieved 12 March 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  21. "PSA against 26 people in Jammu & Kashmir revoked". The Economic Times. 10 January 2020. Retrieved 16 February 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  22. 'Everyone Lives in Fear': Patterns of Impunity in Jammu and Kashmir. Human Rights Watch. 2006. p. 31.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  23. Roshangar, Rouf A. (5 December 2019). "With family detained, Sheikh Abdullah's grave wears deserted look on his birthday". India Today. Retrieved 5 March 2020. ...on Sheikh Abdullah's birth anniversary, neither his son nor his grandson was on hand to pay tributes... Those two men, Farooq Abdullah and Omar Abdullah, were placed in detention...<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  24. "Who is Sheikh Mohammad Abdullah? 10 things to know". India Today. 5 December 2019. Retrieved 5 March 2020. Sheikh Mohammad Abdullah is the father of former Jammu and Kashmir Chief Minister Farooq Abdullah.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  25. 25.0 25.1 25.2 Swami, Praveen (10 February 2020). "PSA has been used over the decades in Kashmir as a quick-fix, but longterm damage on the republic will be serious". Firstpost. Retrieved 16 February 2020. Three former CMs have been detained under the PSA - Farooq Abdullah, his son Omar Abdullah and... Mehbooba Mufti<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  26. Javaid, Azaan (10 February 2020). "Hilal Lone latest Jammu & Kashmir politician to be booked under PSA". ThePrint. Retrieved 16 February 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  27. "Public Safety Act in J&K not to be revoked: Omar Abdullah". The Economic Times. 1 October 2013. Retrieved 12 March 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  28. Radhakrishnan, Sruthi (17 September 2019). "Explained: The Jammu & Kashmir Public Safety Act". The Hindu. ISSN 0971-751X. Retrieved 16 February 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  29. 29.0 29.1 Ahmad, Mudasir (16 February 2020). "Govt Cites Shah Faesal's 'Soft Separatism' on Social Media as Reason For PSA Booking". The Wire. Retrieved 16 February 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  30. "J&K: Shah Faesal booked under PSA for 'soft separatism'". The Indian Express. 16 February 2020. Retrieved 16 February 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  31. 31.0 31.1 31.2 31.3 "The Public Safety Act Is a Political Weapon For the Government in Kashmir". The Wire. Retrieved 17 February 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  32. "PSA against 26 people in Jammu & Kashmir revoked". The Economic Times. 10 January 2020. Retrieved 16 February 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  33. Bhat, Riyaz (5 August 2018). "81% PSA recommendations quashed by HC". Rising Kashmir. Retrieved 17 February 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  34. Bhatnagar, Gaurav Vivek (2 August 2018). "Advisory Board Examining Detention Orders in J&K 'Systematically Subjugated'". The Wire. Retrieved 17 February 2020.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  35. "451 under detention in J&K, over 7000 in preventive custody since Aug: Govt". Business Standard India. PTI. 11 March 2020. Retrieved 12 March 2020.CS1 maint: others (link)<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  36. Rai, Mridu (26 April 2018). "Kashmir: From Princely State to Insurgency". Oxford Research Encyclopedia of Asian History. doi:10.1093/acrefore/9780190277727.013.184. ISBN 9780190277727.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

Bibliography

Further reading

External links