View source for Jammu and Kashmir Public Safety Act 1978

{{Short description|Preventive detention law in the Indian state of Jammu and Kashmir}}
{{Use dmy dates|date=March 2020}}
{{Infobox legislation
| image  = Government of Jammu and Kashmir.svg
| short_title = Public Safety Act, 1978
| legislature = [[Jammu and Kashmir Legislature]]
| long_title = an Act whereas it is necessary in the interest of the security of the State and public order to make law providing for the measures hereinafter appearing.
| territorial_extent = Jammu and Kashmir
| enacted_by = [[Governor of Jammu and Kashmir]]
| date_enacted = 8 April 1978
| date_assented = 
| date_commenced = 
| bill = 
| citation = [https://www.indiacode.nic.in/bitstream/123456789/10406/1/public_safety_act,_1978.pdf Act No. VI of 1978]
| bill_date = 
| introduced_by = 
| 1st_reading = 
| 2nd_reading = 
| 3rd_reading = 
| summary = 
| keywords = 
| 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 [[India]]n [[States and union territories of India|state]] of [[Jammu and Kashmir (state)|Jammu and Kashmir]] (now a [[union territory]]). Whereas PSA applies only to Jammu and Kashmir, it is very similar to the [[National Security Act (India)|National Security Act]] that is used by the central and other state [[Government of India|governments of India]] for preventive detention.<ref>{{cite news|last1=The Indian Express|url=https://indianexpress.com/article/explained/farooq-abdullah-psa-jammu-and-kashmir-explained-6001031/|title=Explained: What is Jammu and Kashmir's Public Safety Act?|date=17 September 2019|access-date=12 March 2020}}</ref>

It was introduced by the then-[[List of chief ministers of Jammu and Kashmir|Chief Minister]], [[Sheikh Abdullah]], in 1978 to ostensibly stop the [[Timber mafia|smuggling of timber]]. However, the political motives behind the law became clearer when Sheikh Abdullah used it for the first time against political rivals.{{Sfn|Bhat|2019|p=56}} Since its usage in the late 1970s, it is still being used today for "the security of the state".{{Sfn|Bhat|2019|p=66}}<ref name=":0">{{Cite web|url=https://www.orfonline.org/research/life-in-kashmir-after-article-370-60785/|title=Life in Kashmir after Article 370|last=Wani|first=Ayjaz|date=28 January 2020|website=Observer Research Foundation|access-date=2020-03-12}}</ref> 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, 2019|Jammu and Kashmir Reorganisation Act of 2019]].<ref name=":1">{{Cite web|url=https://thewire.in/rights/psa-detentions-kashmir|title=How the Public Safety Act Continues to Haunt Kashmir|last=Ahmad|first=Mudasir|date=28 January 2020|website=The Wire|access-date=2020-03-12}}</ref>

In 2015, the government made public the figure of 16,329 persons having been detained under the act since 1988, nearly all from Kashmir.<ref name=":1" /> [[National Crime Records Bureau]] records only 16 women detentions in the period 1995–2008.<ref name=":5">[[Amnesty International]] (2011). ''[https://www.amnestyusa.org/files/asa200012011en_11.pdf A 'Lawless Law': Detention Under The J&K Public Safety Act].'' Amnesty International. Retrieved on 12 March 2020. [https://web.archive.org/web/20190416125747/https://www.amnestyusa.org/files/asa200012011en_11.pdf Archived] on 16 April 2019.</ref> In February 2020, a petition was filed in the [[Supreme Court of India]] by [[Bhim Singh (politician)|Bhim Singh]] of the [[Jammu and Kashmir National Panthers Party]] terming PSA "as dead and ''[[ultra vires]]''".<ref name=":2">{{Cite web|url=https://www.deccanherald.com/national/north-and-central/plea-challenging-jammu-and-kashmir-public-safety-act-filed-in-supreme-court-804323.html|title=Plea challenging Jammu and Kashmir Public Safety Act filed in Supreme Court|date=2020-02-13|website=Deccan Herald|language=en|agency=PTI|access-date=2020-03-12}}</ref>

== 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.<ref name=":6">{{Cite book|last1=Harding|first1=Andrew|url=https://books.google.com/books?id=J0eBd0JDvRQC&pg=PA61|title=Preventive Detention and Security Law: A Commparative Survey|last2=Hatchard|first2=John|date=1993-10-19|publisher=Martinus Nijhoff Publishers|isbn=978-0-7923-2432-4|pages=61|language=en}}</ref> 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.<ref name=":6" />

Currently the provision for preventive detention in India exists under the [[Code of Criminal Procedure (India)|Code of Criminal Procedure]], which draws its roots from laws in [[British India]].<ref name=":3">{{Cite web|url=https://www.thestatesman.com/features/detention-without-crime-1502630494.html|title=Detention without a crime|last1=M K|first1=Rakesh|last2=Chatrath|first2=Dhruv|date=2018-05-03|website=The Statesman|language=en-US|access-date=2020-03-13}}</ref><ref name=":4">{{Cite book|last=Devi|first=B. Uma|url=https://books.google.com/books?id=KIAyDwAAQBAJ|title=Arrest, Detention, and Criminal Justice System: A Study in the Context of the Constitution of India|date=2012-02-24|publisher=Oxford University Press|isbn=978-0-19-908863-8|language=en}}</ref> 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 (India)|National Security Act (NSA) of 1980]], the [[Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974|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.<ref name=":4" /> The time duration of detention permitted under these acts varies from 24 hours to over a year.<ref name=":3" />

=== Legal history of PSA ===
The Public Safety Act has its roots in the [[Defence of India Act 1915|Defence of India Act of 1915]], passed during British rule,<ref>{{Cite web|url=https://www.countercurrents.org/hashmi010507.htm|title=Jammu And Kashmir Public Safety Act-1978|last=Hashmi|first=Syed Junaid|date=1 May 2007|website=countercurrents.org|access-date=2020-02-24}}</ref><ref name=":9">{{Cite web|url=http://scroll.in/article/817809/in-kashmir-a-law-for-timber-smugglers-has-become-a-way-to-keep-people-out-of-circulation|title=In Kashmir, a law for timber smugglers has become a way to keep people 'out of circulation'|last=Chakravarty|first=Ipsita|website=Scroll.in|date=5 October 2016 |language=en-US|access-date=2020-03-13}}</ref> and later in the 1946 Public Security Act which was used by the British to repress the Quit Kashmir Movement.{{Sfn|Bhat|2019|p=55}} 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.{{Sfn|Bhat|2019|p=55}} The 1978 PSA was amended in 1987, 1990, 2012, and as recently as August 2018 to allow individuals to be detained outside the state.<ref name="Indian Express">{{Cite web|url=https://indianexpress.com/article/explained/explained-what-is-the-jk-psa-under-which-shah-faesal-has-been-detained-5905119/|title=Explained: What is J&K Public Safety Act (PSA)?|date=2019-09-16|website=The Indian Express|language=en-US|access-date=2020-02-16}}</ref>

=== Legal provisions ===
The Public Safety Act 1978 consists of five chapters and 24 sections.<ref name=":10">{{Cite web|url=https://indiacode.nic.in/bitstream/123456789/10406/1/public_safety_act,_1978.pdf|title=Public Safety Act, 1978|website=indiacode.nic.in|access-date=2020-03-13}}</ref> The five chapters cover:
{{Blockquote|text='''CHAPTER I''' Preliminary<br/>'''CHAPTER II''' Access to certain premises and areas<br/>'''CHAPTER III''' Maintenance of communal and regional harmony<br/>'''CHAPTER IV''' Power to make orders detaining certain persons<br/>'''CHAPTER V''' Miscellaneous|author=|title=|source=}}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.<ref name=":9" /> 
Chapter IV of the act details "detention of certain persons" including those who qualify as a foreigner or "a person residing in the [[Pakistan occupied Kashmir|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.<ref name=":9" />

Notably there is a provision, ''Grounds of detention severable'', (10.A.a) that goes on to state that the:<ref name=":10" />
{{Blockquote|text=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...|author=|title=|source=}}
In the act the meaning of timber is elaborated: "'Timber' means timber of [[Fir]], Kail, Chir or [[Deodar forests|Deodar]] tree whether in logs or cut up in pieces but does not include firewood".<ref name=":10" />

== Timber smuggling ==
{{See also|Timber mafia}}
Timber smuggling is a major threat in [[Jammu and Kashmir (state)|Jammu and Kashmir]].<ref>{{Cite web|url=https://theprint.in/india/jk-wants-modi-govt-to-amend-indian-forest-act-to-book-timber-smugglers-under-stringent-psa/339577/|title=J&K wants Modi govt to amend Indian Forest Act to book timber smugglers under stringent PSA|last=Javaid|first=Azaan|date=2019-12-24|website=ThePrint|language=en-US|access-date=2020-03-13|postscript=caution}}</ref> By some estimates, this trade is worth tens of millions pounds a year.<ref name=":7">{{Cite news|last=Burke|first=Jason|url=https://www.theguardian.com/environment/2010/jul/14/kashmir-forests-illegal-logging-threat|title=Kashmir fears forests will disappear through 'timber smuggling'|date=2010-07-14|work=The Guardian|access-date=2020-03-13|language=en-GB|issn=0261-3077}}</ref> The smuggling industry involves bureaucrats, families of ministers, and traders.<ref name=":7" /> 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.<ref>{{Cite web|url=https://timesofindia.indiatimes.com/india/Timber-smuggling-in-JK-being-checked/articleshow/1451332.cms|title=Timber smuggling in J&K being checked|date=16 March 2006|website=The Times of India|language=en|access-date=2020-03-13}}</ref> In 2016, more than 700 people were booked for timber smuggling in the state, including 75 forestry officials.<ref name=":8">{{Cite web|url=https://www.outlookindia.com/newswire/story/700-booked-for-timber-smuggling-75-forest-officials-suspended-in-jk/965405|title=700 Booked for Timber Smuggling, 75 Forest Officials Suspended in J&K|date=27 January 2017|website=Outlook India|access-date=2020-03-13}}</ref> Out of these, eight persons were detained under the Public Safety Act (PSA) for repeated forestry offences.<ref name=":8" /> In 2019, fifteen timber smugglers were arrested during nocturnal raids.<ref>{{Cite web|url=https://www.greaterkashmir.com/news/kashmir/15-timber-smugglers-arrested-during-nocturnal-raids-in-north-kashmirs-sopore/|title=15 timber smugglers arrested during nocturnal raids in north Kashmir's Sopore|date=2019-07-21|website=Greater Kashmir|language=en-US|access-date=2020-03-13}}</ref>

Ostensibly, to help curb timber smugglers the Jammu and Kashmir Public Safety Act was passed in 1978.<ref name=":9" />
<gallery mode="packed" widths="250" caption="Forest cover in Jammu and Kashmir: Kashmir Region has 40.17%, Jammu Region has 59.64%><ref&gt;>{{Cite web|url=http://www.jkslbc.com/Environment.php|title=Environment and Forests|website=State Level Bankers' Committees (JK)|access-date=2020-03-13}}</ref&gt;">
File:Forests of Doodhpathri,Jammu & Kashmir.jpg
File:Sarthal Forest.jpg
File:Coniferous Forest (Durring Winters Before Snowfall).jpg
File:Flora of Gulmarg Wildlife Sanctuary.jpg
</gallery>

== 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".<ref name=":9" /> 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".<ref name="Human Rights Watch">{{Cite book |last1=Goldston |first1=James |url=https://books.google.com/books?id=jrGwSsSchRUC&pg=PA115|title=Human Rights in India: Kashmir Under Siege |last2=Gossman |first2=Patricia |date=1991 |publisher=Human Rights Watch |isbn=978-1-56432-010-0 |pages=117 |language=en}}</ref> The report gives an example of the grounds on which the PSA was applied on a person in 1987:<ref name="Human Rights Watch" />

{{Blockquote|text=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...|author=District Magistrate, Baramulla to Abdul Rashid Hajam |title= |source=}}

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.{{Efn|In other states in India the National Security Act applied, which has a maximum detention period of one year.<ref name="NSA">{{cite news |last1=Singh |first1=Soibam Rocky |title=What is National Security Act? |url=https://www.thehindu.com/news/national/what-is-national-security-act/article26292232.ece |access-date=12 March 2020 |agency=The Hindu |date=16 February 2019}}</ref>|name=|group=}}<ref>{{Cite news|url=https://economictimes.indiatimes.com/news/politics-and-nation/psa-against-26-people-in-jammu-kashmir-revoked/articleshow/73191912.cms|title=PSA against 26 people in Jammu & Kashmir revoked|date=2020-01-10|work=The Economic Times|access-date=2020-02-16}}</ref><ref name="Indian Express" /> The law has been criticized for allowing arbitrary detentions and immunity from prosecution.<ref>{{Cite book|url=https://books.google.com/books?id=gnmUMIhFnXcC|title='Everyone Lives in Fear': Patterns of Impunity in Jammu and Kashmir|date=2006|publisher=Human Rights Watch|pages=31|language=en}}</ref>

Numerous people have been detained under the PSA in the recent past, including three former [[List of chief ministers of Jammu and Kashmir|Chief Ministers of Jammu and Kashmir]]—namely [[Farooq Abdullah]], [[Omar Abdullah]] (Farooq and Omar are the son and grandson respectively of Sheikh Abdullah<ref>{{Cite web|url=https://www.indiatoday.in/india/story/sheikh-abdullah-birth-anniversary-no-special-prayers-1625475-2019-12-05|title=With family detained, Sheikh Abdullah's grave wears deserted look on his birthday|last=Roshangar|first=Rouf A.|date=5 December 2019|website=India Today|language=en|access-date=2020-03-05|quote=...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...}}</ref><ref>{{Cite web|url=https://www.indiatoday.in/fyi/story/sheikh-abdullah-birth-anniversary-112-jammu-and-kashmir-1100671-2017-12-05|title=Who is Sheikh Mohammad Abdullah? 10 things to know|date=5 December 2019|website=India Today|language=en|access-date=2020-03-05|quote=Sheikh Mohammad Abdullah is the father of former Jammu and Kashmir Chief Minister Farooq Abdullah.}}</ref>), and [[Mehbooba Mufti]].<ref name="Praveen Swami">{{Cite web|url=https://www.firstpost.com/india/psa-has-been-used-over-the-decades-in-kashmir-as-a-quick-fix-but-longterm-damage-on-the-republic-will-be-serious-8025241.html|title=PSA has been used over the decades in Kashmir as a quick-fix, but longterm damage on the republic will be serious|last=Swami|first=Praveen|date=10 February 2020|website=Firstpost|access-date=2020-02-16|quote=Three former CMs have been detained under the PSA - Farooq Abdullah, his son Omar Abdullah and... Mehbooba Mufti}}</ref><ref>{{Cite web |url=https://theprint.in/india/hilal-lone-latest-jammu-kashmir-politician-to-be-booked-under-psa/362752/ |title=Hilal Lone latest Jammu & Kashmir politician to be booked under PSA |last=Javaid |first=Azaan |date=2020-02-10 |website=ThePrint |language=en-US |access-date=2020-02-16}}</ref> Notably, [[Omar Abdullah]], who was 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.<ref>{{Cite news|url=https://economictimes.indiatimes.com/news/politics-and-nation/public-safety-act-in-jk-not-to-be-revoked-omar-abdullah/articleshow/23366348.cms?from=mdr|title=Public Safety Act in J&K not to be revoked: Omar Abdullah|date=2013-10-01|work=The Economic Times|access-date=2020-03-12}}</ref> Others include [[Masarat Alam Bhat|Masarat Alam]], [[Yasin Malik]], [[Asiya Andrabi]] and [[Shah Faesal]].<ref name="The Hindu">{{Cite news |last=Radhakrishnan |first=Sruthi |url=https://www.thehindu.com/news/national/explained-the-jammu-kashmir-public-safety-act/article29438694.ece |title=Explained: The Jammu & Kashmir Public Safety Act |date=2019-09-17 |work=The Hindu |access-date=2020-02-16 |language=en-IN |issn=0971-751X}}</ref> Shah Faesal was booked under PSA in 2019 and 2020 for a number of reasons, including "soft separatism".<ref name="Mudasir">{{Cite web |url=https://thewire.in/government/shah-faesal-psa-dossier |title=Govt Cites Shah Faesal's 'Soft Separatism' on Social Media as Reason For PSA Booking |last=Ahmad |first=Mudasir |date=16 February 2020 |website=The Wire |access-date=2020-02-16}}</ref><ref>{{Cite web |url=https://indianexpress.com/article/india/jammu-kashmir-public-safety-act-shah-faesal-booked-6270350/ |title=J&K: Shah Faesal booked under PSA for 'soft separatism' |date=2020-02-16 |website=The Indian Express |language=en-US |access-date=2020-02-16}}</ref> The dossier reads:<ref name="Mudasir" />

{{Blockquote |text=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. |author= |title= |source=}}In February 2020, a petition was filed in the [[Supreme Court of India]] by [[Bhim Singh (politician)|Bhim Singh]] of [[Jammu and Kashmir National Panthers Party]] terming PSA "as dead and ''[[ultra vires]]''."<ref name=":2" />

=== 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.<ref name=":1" /> [[National Crime Records Bureau]] records only 16 women detentions in the period 1995–2008.<ref name=":5" /> In 2010, an [[Amnesty International]] report estimated there had been 10,000 to 20,000 arrests under the act since its inception.<ref name="The Wire">{{Cite web |url=https://thewire.in/government/public-safety-act-kashmir |title=The Public Safety Act Is a Political Weapon For the Government in Kashmir |website=The Wire |access-date=2020-02-17}}</ref><ref name="Praveen Swami" /><ref>{{Cite news |url=https://economictimes.indiatimes.com/news/politics-and-nation/psa-against-26-people-in-jammu-kashmir-revoked/articleshow/73191912.cms |title=PSA against 26 people in Jammu & Kashmir revoked |date=2020-01-10 |work=The Economic Times |access-date=2020-02-16}}</ref>

In 2016, around 600 people were detained under PSA orders.<ref name="The Wire" /> The courts have annulled hundreds of detention orders over the years.<ref name="Praveen Swami" /> [[Masarat Alam Bhat|Masarat Alam]]'s was one of the detention orders quashed in December 2016.<ref name="The Wire" /> 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.<ref>{{Cite web |url=http://risingkashmir.com/news/81-psa-recommendations-quashed-by-hc- |title=81% PSA recommendations quashed by HC |last=Bhat |first=Riyaz |date=5 August 2018 |website=[[Rising Kashmir]] |language=en |access-date=2020-02-17 |archive-date=17 February 2020 |archive-url=https://web.archive.org/web/20200217174733/http://risingkashmir.com/news/81-psa-recommendations-quashed-by-hc- |url-status=dead }}</ref><ref>{{Cite web |url=https://thewire.in/law/advisory-board-detention-orders-jk-systematically-subjugated |title=Advisory Board Examining Detention Orders in J&K 'Systematically Subjugated' |last=Bhatnagar |first=Gaurav Vivek |date=2 August 2018 |website=The Wire |access-date=2020-02-17}}</ref>

Following the Jammu and Kashmir Reorganisation Act of 2019, numerous people were detained under PSA and [[Code of Criminal Procedure (India)|CrPC]]; and as of 11 March 2020, 396 persons were still detained under PSA.<ref>{{Cite news|url=https://www.business-standard.com/article/pti-stories/451-under-detention-in-jammu-and-kashmir-minister-tells-rajya-sabha-120031101359_1.html|title=451 under detention in J&K, over 7000 in preventive custody since Aug: Govt|date=2020-03-11|work=Business Standard India|access-date=2020-03-12|agency=PTI}}</ref>

== Procedure and functioning ==

Public Safety Act allows administrative detention of:
* 3 months - 1 year,  where "any person is acting in any manner prejudicial to the maintenance of public order".<ref name="JKPSA"/>
* 6 months - 2 years, in the "case of persons acting in any manner prejudicial to the security of the State".<ref name="JKPSA"/>
* 12 months, in the case of the persons indulging in smuggling of timber.<ref name="JKPSA"/>

=== Issuing order ===

Under Section 8 of the act, a Divisional Commissioner or a District Magistrate, both executive authorities, may issue a detention order to prevent anyone from acting in a manner prejudicial to the "security of the State or the maintenance of the public order".<ref name="JKPSA"/>

=== Informing grounds of detention ===

Under Section 13 of the act, the detaining authority is required to inform the person detained, the grounds of detention within 10 days of detention in a language they understand. However sub-section 2, allows the authority to hold back any information that it considers "against the public interest to disclose".<ref name="JKPSA"/>

At the same time, the authority is required to inform the State Government about the order and get it approved in 12 days, for the order to remain in force.{{Citation needed|date=April 2020}}

=== Reviewing the order  ===

All detention orders, along with the grounds of the orders and representations (if any) must be placed before a non-judicial advisory board within 4 weeks of the detention.<ref name="JKPSA"/>

The advisory board is then required to review the detention order, representation and any information necessary and submit its report to the State Government within 8 weeks of the detention. However, the person detained is not entitled to any legal counsel, since PSA explicitly bars detainees from being represented by legal counsel before the advisory board.<ref name="JKPSA"/>

=== Compensation ===
Further, Section 22 of the act, provides immunity to the officials involved, providing a complete bar on legal proceedings against any officials for anything done or intended to be done in good faith in pursuance of the provisions of this Act.<ref name="JKPSA" />

== Issues ==
The Act is widely criticized for being undemocratic and against the principles of a free society. Nowadays, the people who had once passed this act are suffering from the same.<ref>{{cite web |title=Excessive force, arbitrary detention, enforced disappearances, lack of access to justice, health: Extracts from the first-ever UN Report on Kashmir |url=https://caravanmagazine.in/conflict/un-report-kashmir-excessive-force-arbitrary-detention-lack-of-access-to-justice-health |access-date=3 April 2020}}</ref>
Many sections of the act violate major international treaties to which India is a signatory, with the likes of [[ICCPR]].<ref>{{cite web |title=Amnesty terms PSA as 'lawless law', asks J&K govt to revoke it |url=https://www.news18.com/news/india/amnesty-terms-psa-as-lawless-law-asks-jk-govt-to-revoke-it-516593.html |website=News 18 |access-date=3 April 2020}}</ref>

=== Critical sections of the Act that violate international human rights===

====Section 8====

Under international human rights law, restrictions on liberty must obey the principle of legality: they must be adequately accessible and precise so that people can regulate their conduct according to it.<ref>{{cite web |title=UN Commission on Human Rights, Promotion and Protection of Human Rights, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, 28 December 2005, E/CN.4/2006/98 |url=https://www.refworld.org/docid/441181f10.html |access-date=3 April 2020}}</ref>

However, the PSA does not define "security of the state", and provides a vague and over-broad understanding of "public order". The operative provisions of the act are too broad and vague that they end up granting the authorities sweeping powers, at the same time seriously diminishing any real possibility for persons detained to contest the legality of the detention order.<ref name="AI India">{{cite web |title=TYRANNY OF A 'LAWLESS LAW' |url=https://amnesty.org.in/wp-content/uploads/2019/06/Tyranny-of-A-Lawless-Law.pdf |website=Amnesty India |access-date=3 April 2020 |archive-date=17 February 2020 |archive-url=https://web.archive.org/web/20200217174122/https://amnesty.org.in/wp-content/uploads/2019/06/Tyranny-of-A-Lawless-Law.pdf |url-status=dead }}</ref>

==== Section 13 ====

Section 13 of the act, allows the authority to not communicate grounds of detention for up to 5 days, which can be extended to 10 days of detention.<ref name="JKPSA">{{cite web|url=https://www.refworld.org/docid/3ae6b52014.html|title=India: Act No. of 1978, Jammu and Kashmir Public Safety Act, 1978|access-date=3 April 2020}}</ref>
Article 9(2) of the ICCPR provides that anyone arrested has a right to be immediately informed about the grounds of the arrest, which also applies to preventive and administrative detentions.<ref name="AR9">{{cite web |title=International Covenant on Civil and Political Rights |url=https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx |website=OHCHR}}</ref>

And at the same time, the Sub-Section 2, allows the authorities to withhold any information that it considers "to be against public interest" to disclose, which has been abused many times by the authorities to withhold significant information from the person detained.<ref name="JKPSA"/> 
Such provisions of non-disclosure are in violation of Article 9(2) of the ICCPR.<ref name="AR9"/>

==== Section 15 ====

Under Article 9(4) of the ICCPR, every person deprived of their liberty, whether arrested or detained has a right to a judicial review,<ref name="AR9"/> however, PSA makes no such provisions and instead an advisory board, a non-judicial body appointed by the government on the recommendations of a three-person committee comprising senior state bureaucrats reviews all the orders.<ref name="AI India"/>

==== Section 16 ====

Detained persons have the right to communicate with and be represented by a counsel of their choice, however, Section 16 of the Public Safety Act, states that any person against whom a detention order has been made is not entitled to legal counsel with respect to the advisory board and its proceedings.<ref name="JKPSA"/>

Section 16 not only disregards the "right to communicate with and be represented by counsel of choosing in the determination of criminal charges" guaranteed by Articles 14(3)(b) and (d) of the [[ICCPR]] but also undermines the right to challenge the legality of detention set out in Article 9(4).<ref name="AR9"/>

==== Section 22 ====

Everyone has a right to a remedy under international human rights law and standards.<ref>{{cite web |title=International Covenant on Civil and Political Rights |url=https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx |website=OHCHR |access-date=3 April 2020 |quote=To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;}}</ref>
 
However, Section 22 of the Public Safety Act, provides a complete bar on criminal, civil or "any other legal proceedings...against any person for anything done or intended to be done in good faith in pursuance of the provisions of this Act", thus enabling impunity by protecting officials even in situations where PSA is abused.<ref name="JKPSA"/>

=== Inconsistency of data ===

The data regarding the number of humans detained under PSA throughout the years has been quite inconsistent, with figures widely conflicting with each other.<ref name="AI India"/>
For example, in January 2018, the J&K government said only 525 persons were detained under PSA in 2016, which was almost half the number quoted by media reports in 2019.<ref name="Wire">{{cite web |title=The Wire |url=https://thewire.in/rights/psa-detentions-kashmir |website=How the Public Safety Act Continues to Haunt Kashmir |access-date=3 April 2020}}</ref>
The government also said, 201 persons were booked in 2017, when the official data says that more than double, 410 were booked under PSA.<ref name="Wire"/>

This can be further seen in the 2011 report by Amnesty International,<ref name="Amnesty">{{cite web |title=A Lawless Law: Detentions under the Jammu and Kashmir Public Safety Act |url=https://www.amnesty.org/download/Documents/28000/asa200012011en.pdf |access-date=3 April 2020}}</ref>

{|class="wikitable"
!  &nbsp;&nbsp; Number of persons held under administrative detention in J&K 1990-2008 <ref name="Amnesty"/>
<br />&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<small>(Statistics from [[National Crime Records Bureau]] and [[Greater Kashmir]] Newspaper.)</small> &nbsp;&nbsp;
|-
|
{| class="wikitable "
|-
! Year !! NCRB !! Greater Kashmir
|-
| 1990 || NA || 942
|-
| 1991 || NA || 1070
|-
| 1992 || NA || 976
|-
| 1993 || NA || 1112
|-
| 1994 || NA || 2118
|-
| 1995 || 799 || 1819
|-
| 1996 || 1022 || 1560
|-
| 1997 || 725 || 414
|-
| 1998 || 303 || 460
|-
| 1999 || 269 || 441
|-
| 2000 || 497 || 503
|-
| 2001 || 416 || 318
|-
| 2002 || 444 || 504
|-
| 2003 || 397 || 401
|-
| 2004 || 451 || 510
|-
| 2005 || 377 || 402
|-
| 2006 || 369 || 920
|-
| 2007 || 275 || NA
|-
| 2008 || 266 || NA
|}
|}

While Amnesty does not consider either of the sources entirely reliable, it stresses on the fact that government stats are often inconsistent, for example, it says for 1997, the NCRB notes 725 detainees, but in a reply to a petition before [[National Human Rights Commission of India|NHRC]], the Central Government counsel submitted on record that as of December 1997, 1016 persons were held under preventive detention in J&K.<ref name="Amnesty"/>

=== Role of Detaining Authorities  ===

An order of administrative detention under the PSA can be passed by the District Magistrates and Divisional Commissioners, thus making it a purely executive exercise of power.<ref name="JKPSA"/>

The Supreme Court of India has stated: "Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law… Preventive detention is often described as a "jurisdiction of suspicion". The detaining authority passes the order of detention on subjective satisfaction... To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital."<ref>{{cite web |title=Rekha vs State Of T.Nadu |url=https://indiankanoon.org/doc/192877/ |website=Indian Kanoon |access-date=4 April 2020}}</ref>

==== Lack of SOPs ====

An RTI application to the J&K Home Department filed by members of the J&K RTI Movement revealed that the State Government of J&K has not made any Rules or Standard Operating Procedures (SOPs) under PSA, during the four decades of its existence.<ref name="SOP">{{cite web |title=NO RULES, SOPS FOR ORDERING PREVENTIVE DETENTIONS UNDER J&K PSA |url=https://www.humanrightsinitiative.org/blog/no-rules-sops-for-ordering-preventive-detentions-under-jk-psa |website=HRI |access-date=4 April 2020}}</ref> Every year the detaining authorities have been issuing detention orders without any SOPs to guide them except the reports and dossiers prepared by the J&K Police.<ref name="SOP" />

==== Failure to Scrutinize Evidence ====

In an interview with Amnesty International, a former District Magistrate said that the Magistrates do not have dedicated assistance available, which could verify and seriously examine the police version, thus the District Magistrate as to necessarily rely on the reports filed by the police. Thus reducing their role to mere rubber stamps.<ref name="AI India"/>

Amnesty India observed a common flaw in the detention orders where the detaining authorities reproduced word-for-word the dossier given by the police which contained the allegations against the person detained.<ref name="AI India"/> <br>Many such detention orders have been quashed by the High Court, for example in May 2017, a detention was quashed by the High Court, stating among other reasons: "Perusal of grounds of detention would show that it is a verbatim copy of Dossier of Senior Superintendent of Police submitted by him to the Concerned Magistrate."<ref>{{cite web |title=Bashir Ahmad Mir vs State Of J&K |url=https://indiankanoon.org/doc/15456862/ |website=Indian Kanoon |access-date=4 April 2020}}</ref>

=== Role of Advisory Boards  ===

Since the PSA does not make any provision for judicial review or any appeal process to detainees, under Section 14 of the PSA, a non- judicial body, Advisory Board is set up to review detention orders and determine whether there is sufficient cause for detention. The advisory board examines the case only in the initial stages of the detention. There is no provision in the PSA to appeal against the decision of the advisory board.<ref name="JKPSA"/>

==== Appointment  ====

Advisory Board consists of two members and a chairperson, which are appointed by the government. Prior to the Jammu & Kashmir (Preventive Detention Laws) Ordinance 2018,<ref name="Ord"/> the members of the advisory board were appointed by the Government in consultation with the Chief Justice of the High Court.<ref name="JKPSA"/>

The ordinance removes the mandatory requirement of consultation with the Chief Justice of the J&K High Court.<ref name="Ord">{{cite web |title=Jammu & Kashmir (Preventive Detention Laws) Ordinance 2018 |url=http://jklaw.nic.in/pdf/preanative%20decation%20.pdf |website=JK Law Department |access-date=5 April 2020 |archive-date=9 March 2021 |archive-url=https://web.archive.org/web/20210309193335/http://jklaw.nic.in/pdf/preanative%20decation%20.pdf |url-status=dead }}</ref> Now the members – provided they were not sitting judges – would be appointed by the government on the recommendations of a 3-person committee made up of senior state bureaucrats.<ref name="Ord"/> Thus enhancing the role that the executive play and reducing the independence of the advisory board.<ref name="AI India"/>

==== Functioning ====

The advisory board is required to review the grounds of detention and the representation, if any, by the person detained. Anyone detained under PSA is not entitled to legal counsel.<ref name="JKPSA"/> The board is known for almost always upholding the detention orders passed by executive officials. For example, an RTI application<ref name="HRIJK">{{cite web |title=RTI REVEALS ADVISORY BOARD UNDER J&K PUBLIC SAFETY ACT SPENT 75% OF ITS BUDGET UPHOLDING DETENTION ORDERS WHICH J&K HIGH COURT QUASHED LATER ON |url=https://www.humanrightsinitiative.org/blog/rti-reveals-advisory-board-under-jk-public-safety-act-spent-75-of-its-budget-upholding-detention-orders-which-jk-high-court-quashed-later-on |website=HRI |access-date=6 April 2020}}</ref> filed by two students of the Department of Law, University of Kashmir revealed that the advisory board was referred 1004 detention orders by the State Government between April 2016 and mid-December<ref name="HRIJK"/> and it found sufficient cause to uphold the detention order in 99.40% cases.<ref name="HRIJK"/>

The J&K High Court quashed more than 81% of the detention orders that the Board upheld earlier in the same period.<ref name="HRIJK"/> The RTI also revealed that the advisory board spent more than 75% of its total expenditure in 2016–17 to uphold detention orders which were quashed later on by the court.<ref name="HRIJK"/> It was observed by Amnesty International was informed that in many cases, detainees refuse to file representations before the advisory board, as they see no hope of a proper hearing.<ref name="AI India"/>

===Criticism from Judiciary and Civil Societies  ===

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".<ref name=":9" />

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".<ref name="The Wire" /> "The upper limit on the period of detention is frequently violated" notes historian [[Mridu Rai]].<ref>{{Cite journal|last=Rai|first=Mridu|date=2018-04-26|title=Kashmir: From Princely State to Insurgency|url=https://oxfordre.com/view/10.1093/acrefore/9780190277727.001.0001/acrefore-9780190277727-e-184|journal=Oxford Research Encyclopedia of Asian History|language=en|doi=10.1093/acrefore/9780190277727.013.184|isbn=9780190277727|url-access=subscription}}</ref> 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.{{Sfn|Bhat|2019|p=60}}

A report by [[Observer Research Foundation]] titled "Life in Kashmir after Article 370" dated 28 January 2020 recommended the immediate repeal of the PSA.<ref name=":0" />

== Notes ==
{{reflist|group=lower-alpha}}

== References ==
{{reflist}}

== Bibliography ==
* {{citation |first=Mohmad Aabid |last=Bhat |chapter=Preventive Detention in Counter-insurgencies: The Case of Kashmir |title=Insight Turkey 2019/04 |chapter-url=https://books.google.com/books?id=AnjEDwAAQBAJ&pg=PA55 |year=2019 |publisher=SET Vakfı İktisadi İşletmesi}}
* {{citation |first=Sumantra |last=Bose |author-link=Sumantra Bose |title=Kashmir: Roots of Conflict, Paths to Peace |publisher=Harvard University Press |year=2003 |isbn=0-674-01173-2}}
* {{cite journal |last1=Duschinski |first1=Haley |last2=Ghosh |first2=Shrimoyee Nandini |title=Constituting the occupation: preventive detention and permanent emergency in Kashmir |journal=The Journal of Legal Pluralism and Unofficial Law |volume=49 |issue=3 |year=2017 |pages=314–337 |issn=0732-9113 |doi=10.1080/07329113.2017.1347850|s2cid=148881842 }}
* {{citation |last=Cottrell |first=Jill |chapter=Kashmir: The vanishing autonomy |editor1=Yash Ghai |editor2=Sophia Woodman |title=Practising Self-Government: A Comparative Study of Autonomous Regions |chapter-url=https://books.google.com/books?id=rY9fAAAAQBAJ&pg=PT259 |date=2013 |publisher=Cambridge University Press |isbn=978-1-107-29235-2 |pages=163–199 |doi=10.1017/CBO9781139088206.006}}
* {{cite journal |last1=Pandit |first1=Huzaifa |title=Schools of resistance – a brief history of student activism in Kashmir |journal=Postcolonial Studies |volume=22 |issue=1 |year=2019 |pages=95–116 |issn=1368-8790 |doi=10.1080/13688790.2019.1568171|s2cid=150693237 }}
* {{Citation |last=Rai |first=Mridu |title=Oxford Research Encyclopedia of Asian History |chapter=Kashmir: From Princely State to Insurgency |publisher=Oxford University Press |year=2018 |doi=10.1093/acrefore/9780190277727.013.184|isbn=9780190277727 }}

== Further reading ==

*[[Amnesty International]] (2019). [https://amnesty.org.in/wp-content/uploads/2019/06/Tyranny-of-A-Lawless-Law.pdf ''Tyranny of a ‘Lawless Law': Detention Without Charge or Trial Under The J&K Public Safety Act'']. Indians For Amnesty International Trust. Retrieved on 17 February 2020. [https://web.archive.org/web/20200217174122/https://amnesty.org.in/wp-content/uploads/2019/06/Tyranny-of-A-Lawless-Law.pdf Archived] on 17 February 2020.
*[[Amnesty International]] (2011). ''[https://www.amnestyusa.org/files/asa200012011en_11.pdf A ‘Lawless Law': Detention Under The J&K Public Safety Act].'' Amnesty International. Retrieved on 12 March 2020. [https://web.archive.org/web/20190416125747/https://www.amnestyusa.org/files/asa200012011en_11.pdf Archived] on 16 April 2019.
*[[Library of Congress]] (11 April 2012). [https://www.loc.gov/law/foreign-news/article/india-state-of-jammu-and-kashmir-amends-public-safety-act/ India: State of Jammu and Kashmir Amends Public Safety Act]. Global Legal Monitor
*IANS (3 January 2018). [https://www.newindianexpress.com/nation/2018/jan/03/no-rules-no-procedures-for-preventive-detentions-under-jammu-and-kashmir-public-safety-act-reveals-1743965.html No rules, no procedures for preventive detentions under Jammu and Kashmir Public Safety Act, reveals RTI]. [[The New Indian Express]]
*B. V. Kumar (1991). [https://books.google.com/books?id=eb-6PAAACAAJ&q=prevention+detention Preventive Detention Laws of India]. Konark Publishers. {{ISBN|8122002358|9788122002355}}

== External links ==

* [https://indiacode.nic.in/bitstream/123456789/10406/1/public_safety_act%2C_1978.pdf Jammu and Kashmir Public Safety Act, 1978]
*Department of Forests, Environment & Ecology (2014). [http://jkforest.gov.in/wplans/SHOPIAN_WP_PART1_FINAL.pdf Sanction for approved of revised Working Plans of Anantnag, Shopian and Udhampur Forest Divisions]. Government of Jammu and Kashmir 
{{Jammu and Kashmir topics|state=collapsed}}

[[Category:Law enforcement in India]]
[[Category:Jammu and Kashmir (state)]]