Context

Recently President of Jammu and Kashmir National Conference and MP, Farooq Abdullah was detained under Public Safety Act hours before the Supreme Court was due to hear a habeas corpus petition filed on his detention.

About

• The Jammu & Kashmir Public Safety Act, 1978 is a preventive detention law, under which a person not below 18 years of age 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”.
• The law was introduced by Sheikh Abdullah in 1978. It was brought in to prevent timber smuggling, and keep the smugglers in prison. 
• Under this law a person can be detained up to two years without a trial.

Protection against Detention under PSA

• The only way the preventive detention order can be challenged is through a habeas corpus petition filed by relatives of the detained person.
• High Court and Supreme Court have the jurisdiction to hear such petitions and pass a final order seeking quashing of the PSA.
• However, if the order is quashed, there is no bar on the government passing another detention order under the PSA and detaining the person again.

Criticism of PSA

• Wrongful Detentions: Amnesty International reports and human rights activists have unanimously criticized PSA for resulting into wrongful detentions. According to a report, from 2007 to 2016, over 2400 PSA detention orders were passed, of which about 58% were quashed by courts.
• Denying Citizens the right to fair trials and justice: PSA has been used to devise a parallel or "informal" system to circumvent the regular criminal justice system in place and detain individuals for long periods of time, depriving them of their fair trial rights.
• Violation of international Human Rights: Under international human rights law, restrictions on liberty must obey the principle of legality: they must be adequately accessible, so that people know how the laws limit their conduct. However, the PSA does not define “security of the state” and provides a vague and over-broad understanding of “public order”.
• Detention of Minors: Under international law, anyone below the age of 18 is a child. The PSA prohibits the detention of children, following an amendment to the Act in 2012. However many children have been detained in Kashmir under PSA.
• Detention in prisons far from home: The amendment to PSA in 2018 by Governor has lifted the provision of detaining the residents in local jails and now they can be shifted to jails outside Jammu and Kashmir.
• Detention on vague and generic allegations prevents detainees from effectively challenging them.
• Failure of Judiciary:
  • Ignoring illegal detention: Despite bringing illegal detentions to its notice, the Jammu and Kashmir High Court has not ordered investigations into a single instance of alleged illegal detention.
  • Not holding detaining authorities accountable: The High Court has quashed many cases of PSA detention but no police officials or executive detaining authorities have been held accountable for their failures. Officials already protected from prosecution under immunity provisions in the PSA are further emboldened by such reluctance from the High Court.
  • Not awarding compensation: The Supreme Court of India has awarded compensation in the past in cases of human rights violations, including illegal detentions but has failed to act in cases of PSA.

Conclusion

The disturbing situation in Kashmir demands the existence of such laws so that any law and order instances can be prevented. However, its misuse must be strictly prevented and it shall be ensured that the children in conflict with the law are brought before a Juvenile Justice Board and treated in line with the J&K Juvenile Justice Act.