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UPSC Civil Services Topper Turned Politician Shah Faesal

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UPSC Civil Services Topper Turned Politician Shah Faesal • UPSC Civil Services Topper Turned Politician Shah Faesal Booked Under Public Safety Act In J&K • What is the J&K PSA? • The Jammu and Kashmir Public Safety Act (PSA) received the assent of the J&K Governor on April 8, 1978. • The Act was introduced as a tough law to prevent the smuggling of timber and keep the smugglers “out of circulation”. • The law allows the government to detain any person above the age of 16 without trial for a period of two years. • Issues with Public Safety Act • Detention Without Trial: The PSA allows for the detention of a person without a formal charge and without trial. • Discretionary powers • No Right to File Bail Application • Limited legal remedies • Reason • Section 8 of the PSA: It provides a vast number of reasons for detention, ranging from “promoting, propagating, or attempting to create, feelings of enmity or hatred or disharmony on grounds of religion, race, caste, community, or region” to incitement, instigation, abetment and actual commission of such acts, and leaves it to district collectors or district magistrates to decide, giving a 12-day period within which an advisory board has to approve the detention • No Distinction Between Minor and Major Offences: It allows detention for up to 1 year for disturbance of public order and 2 years for actions “prejudicial to the security of the State”. • Why is it often referred to as a “draconian” law? • Right from the beginning, the law was misused widely, and was repeatedly employed against political opponents by consecutive governments until 1990. After the emergence of militancy, the J&K government frequently invoked the PSA to crack down on separatists. • In August 2018, the Act was amended to allow individuals to be detained under the PSA outside the state as well. • The detaining authority need not disclose any facts about the detention “which it considers to be against the public interest to disclose”. • The terms under which a person is detained under PSA are vague and include a broad range of activities like “acting in any manner prejudicial to the security of the State” or for “acting in any manner prejudicial to the maintenance of public order”. • The vagueness provided in the act gives unbridled powers to the authorities. The detainees, therefore, are effectively debarred from contesting the legality of their detention. • PSA does not provide for a judicial review of detention. To checkmate the J&K High Court orders for release of persons detained under the act the state authorities issue successive detention orders. This ensures prolonged detention of people. • PSC has been used against human rights activists, journalists, separatists and others who are considered as a threat to the law & order. Right to dissent is stifled by these Acts. • History of preventive detention • Preventive detention laws in India date back to early days of the colonial era when the Bengal Regulation III of 1818 was enacted to empower the government to arrest anyone for defence or maintenance of public order without giving the person recourse to judicial proceedings. • A century later, the British government enacted the Rowlatt Acts of 1919 that allowed confinement of a suspect without trial. Post-independence India got its first preventive detention rule when the government of Prime Minister Jawaharlal Nehru enacted the Preventive Detention Act of 1950. • The NSA is a close iteration of the 1950 Act. After the Preventive Detention Act expired on December 31, 1969, the then Prime Minister, Indira Gandhi, brought in the controversial Maintenance of Internal Security Act (MISA) in 1971 giving similar powers to the government. • Though the MISA was repealed in 1977 after the Janata Party came to power, the successive government, led by Mrs. Gandhi, brought in the NSA. • Lets clear what is Preventive Detention ? • Preventive detention involves the detainment (confinement) of a person in order to keep them from committing future crimes and/or from escaping future prosecution. • Punitive detention is punishment for illegal acts done. • Article 22(1) of the Constitution states that no person who is arrested shall be denied the right to consult, and to be defended by, a legal practitioner of his choice. • Article 22(2) states that every person arrested and detained shall be produced before the nearest magistrate within a period of 24 hours (excluding the time necessary for the journey from the place of arrest to the court) and no such person shall be detained beyond this period without the authority of a magistrate. • Article 22(3)(b) allows for preventive detention and restriction on personal liberty for reasons of state security and public order. • Article 22(4) states that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless: • an Advisory Board reports sufficient cause for extended detention. • Such a person is detained in accordance with the provisions of any law made by the Parliament. • National Security Act (NSA): • The National Security Act (NSA), 1980 empowers the Centre or a State government to detain a person to prevent him from • acting in any manner prejudicial to national security. • disrupting public order or for maintenance of supplies and services essential to the community. • The maximum period for which one may be detained is 12 months. But the term can be extended if the government finds fresh evidence. • The act extends to the whole of India except the State of Jammu and Kashmir. • Rights against preventive detention: • In the normal course, if a person is arrested, he or she is guaranteed certain basic rights. These include the right to be informed of the reason for the arrest. • Section 50 of the Criminal Procedure Code (Cr.PC) mandates that the person arrested has to be informed of the grounds of arrest, and the right to bail. Sections 56 and 76 of the Cr. PC also provides that a person has to be produced before a court within 24 hours of arrest. • Additionally, Article 22(1) of the Constitution says an arrested person cannot be denied the right to consult, and to be defended by, a legal practitioner of his choice. • Recent cases of Arrest under NSA: • The National Crime Records Bureau (NCRB) does not include cases under the NSA in its data as no FIRs are registered. Hence, no exact figures are available for detentions under the NSA. • In January, the Uttar Pradesh government arrested three persons under the NSA in connection with an alleged cow-slaughter incident in Bulandshahr. • In December last year, a Manipur journalist, who had posted an alleged offensive Facebook post on the Chief Minister, was detained for 12 months under the NSA. • Experts say these cases shows that governments sometimes use it as an extra- judicial power..
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