Prelims Level
Mains Level
Prelims Syllabus : Governance – Policies Mains Syllabus : GS-II Government Policies and Interventions for development in Various Sectors and Issues Arising out of their design and Implementation.

Why in News?

  • Numerous political leaders and activists have been arrested in the state of Jammu and Kashmir in the name of Public safety.
  • Here this article highlights the lack of procedural fairness with various Preventive Detention Laws in India including Jammu and Kashmir Public Safety Act, 1968.

About Jammu & Kashmir Public Safety Act, 1978

  • The Jammu & Kashmir Public Safety Act, 1978 is a preventive detention law and constitutional protection provided under Article 22 shall not apply to those charged under PSA.
  • Detention orders under the Act can be passed by Divisional Commissioners or District Magistrate if they are satisfied that any person
    • May hamper or obstruct security of the state
    • Disturb the maintenance of Public Order
    • To prevent instances of smuggling or helping to smuggle timber or liquor in the state.
    • is a foreigner within the meaning of the Foreigners Act

What happens after a person is charged under PSA?

  • The DM communicates to the person within five to ten days in writing the reason for the detention and becomes the only formal communication.
  • This communication is important because it is on the basis of it that the detained person gets an opportunity of making legal representation against the order in High Courts or Supreme Court under Article 226 and 32 respectively.
  • However, the DM also has the discretion not to disclose all the facts pertaining to detention, if according to the officer such facts are against “public interest”.
  • The District Magistrate can call the person charged under PSA to record his statement but legal representation through a lawyer is not allowed.

Referring of Case to Advisory Board:

  • The DM has to place the detention order within four weeks before an Advisory Board including representation if any made by the person detained under PSA.
  • The Advisory Board may call the person charged under PSA for personal representation to record his/her statement. However, legal representation by another lawyer before Advisory Board is not allowed.
  • Within Six Weeks from the date of detention, the Advisory Board shall submit its report to the government, which will determine if the detention is in public interest.

Decision of Advisory Board:

  • The Board may either allow for further detention or allow for release of the person concerned whereby the Government shall revoke the detention order.
  • In case, the Advisory Board calls for further detention, the state government can detain for a maximum of
    • 2 years– if accused was detained to obstruct Security of the State and
    • 1 year– if the accused was detained to disturb Public Order.
  • Decisions of the Advisory Board shall be binding on the State Government

Need for Preventive Detention Laws:

  • Preventive detention laws exist at both the national and State levels and are intended to serve as effective measures to prevent the occurrence of crime.
  • These different laws adopt a similar logic as under these laws, executive officers such as District Magistrates or Commissioners of Police are empowered to pass orders for arrest and to take persons into custody.
  • These powers can be exercised if the officers are “satisfied” that the person’s conduct is posing a risk to safety and security of state or might hamper public order.
  • For instance, the National Security Act of 1980 permits arrest and detention of persons when it is in the interest of maintaining “public order”, which can occur even without any allegations of the person breaking any existing laws.
  • Similarly people can be detained under J&K PSA if in the opinion of DM or Divisional Commissioners they are a threat to security of state or they can disturb public order.

Lack of Procedural Fairness:

  • Such laws avoid criminal trial like other regular criminal proceedings because for criminal trials you need to inform the accused of the grounds of crime.
  • Under preventive detention laws, there is no need to inform the accused immediately of grounds of arrest.
  • Arrested person need not be produced before Court within 24 hours as per normal norms.
  • Subsequent checks and scrutiny is heavily guarded by state authorities and chances of unfairness in such proceedings are very high.
  • There is no judicial oversight where detention beyond three months is not sought. And even in those cases which go to a Tribunal comprising judges, there is no public hearing involved and no guaranteed oral hearing for the person detained.
  • Further, no publicly available orders or judgments are published about the ultimate decision.
  • Even legal assistance is somewhat restrained and this goes against the basic human rights of person detained under preventive detention laws.
  • The only opportunity lies in filing writ petitions in High Court or Supreme Court for release of person.
  • At times, preventive detention laws are used to cover normal crimes as this largely reduces the legal assistance of detainees.

Conclusion:

  • This article concludes by saying that the procedures of preventive detention laws in India practically sacrifice due process interests at the altar of crime control, and this bargain is ill-suited to justice, no matter how grave the risks.
  • The government should think towards making certain changes in preventing detention laws making it less draconian and providing for human rights of the accused.
  • Right of Legal Representation through a lawyer of detainee’s choice must be provided in PSA.
  • It must be ensured that parallel proceedings are not initiated under preventing detention laws and regular criminal proceedings. The law must ensure that if charges have been framed under PSA, then regular criminal charges must be either withdrawn or transferred under PSA.
  • It must be ensured that if writ petition is accepted by High Court or Supreme Court against detention of a person under preventing detention laws, such writ petition must be entertained within a period of 15 days. This will expedite the legal process providing for bail.
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