Reading time: 6-8 minutes.
The 14th of August, 2019 has discernibly validated the allusion ‘May we never confuse honest dissent with disloyal subversion’ as was elucidated by the former US President Dwight D. Eisenhower. It is because the draconian Public Safety Act, 1978 (PSA) was again invoked to detain the 2010 J&K IAS topper Shah Faesal at the Delhi Airport. The detention was done by way of a circular issued by Intelligence Bureau on 12th of August, 2019 precluding Mr. Shah to leave the country.
The former IAS officer is one of the lead critiques against the government’s scrapping down of Article 370 which delved special status to the state of J&K and thus the grounds of his detention can be traced back to February 12, 2019 when the detainee was served a 27 pages PSA dossier containing social media posts of Mr. Shah alleged to be critical of the government and also the grounds averred Mr. Shah’s alliance with Seikh Abdul Rashid, an arrestee in a terror funding case.
The detention was challenged in the Delhi HC on the ground that Mr. Shah was flying abroad to pursue higher studies in Harvard University, however the detention authority defended the contention by resorting to the fact that the detenue was flying on a tourist visa and not on a student visa.
Significance of this development
This instance of detention ignited netizens and citizens around the sub-continent demanding justice for all the persons who are detained post abrogation of Article 370. Further, it also led many scholars and intellectuals in the legal milieu to review the ‘extraordinary’ laws such as the PSA, National Security Act and Unlawful Activities (Prevention) Act.Alongside, it also brought into limelight many similar acts of detaining authorities which were in a state of stalemate.
As editorialized below, the detention of conspicuous persons such as Mr. Faesal also led the judiciary, in other cases such as Mian Abdul Qayoom v. State of J&K and Ors., to hold that the ‘subjective satisfaction’ of the detaining authority whether to detain a person cannot be subjected to the objective assessment of judicial review.
Salient features of the Act (PSA)
The PSA is filled with plethora of intricacies and salient features, one of which is the period of detention that can be imposed on the detenue. At inception, when a person is detained vide order made under Section 8 of the Act, the case is to be referred within four weeks from the passage of the detention order to an advisory board constituted by the government, where the latter, within 8 weeks, prescribes as to the validity of the detention order, and if held to be valid, the person can be detained for 24 months.
The detenue is delved with limited rights alien to criminal jurisprudence as there are no provisions for producing the arrestee within 24 hours before magistrate. Moreover, under Section 13, the detenue need not be conveyed the grounds on which the detention was made. Further, the right to get represented by a legal practitioner is curbed under Section 16(1) r/w 16(5) of the Act which provides for hearing in person before the advisory board. Additionally, the PSA sets no territorial limits of the detaining authority and hence, an order can be executed throughout the nation.
Why was the Act introduced?
The invocation of the Act, post abrogation of Article 370, ironically makes it antithesis for the purpose for which it was originally introduced by the former CM of J&K Sheikh Abdullahin 1978. It was introduced for tackling rampant timber smuggling in the state of J&K and thus provided for a stringent procedure with a bona fide aim of precluding the accused from exploiting legal loopholes. However, over time the same Act is being used for detaining several political and separatist leaders ranging from Omar Abdullah, Mehbooba Mufti to Yasin Malik. Hence, an Act which was enacted for the purpose of curving economic offences, finally vested limitless power on the government with meagre scope of judicial scrutiny.
Critical analysis of the Act (pros and cons)
While penning down the pros of the PSA, the discussion shall start from the fact that ‘each of the detention law are to prevent crime and not punish offenders’ as held in Mariappan v. The District Collector and Ors. It is conceded that Acts such the PSA and NSA may provide for some stringent procedures not conforming with the ordinary laws, however, considering the situation in the state of J&K, such laws recurrently act as a bulwark saving the state from terrorism and separatism. This is because to curb separatism and terrorism in the valley, there is a need for a legislation which provides for rapid action without restoring to procedural intricacies.
Moreover, provisions such as non-production of accused before magistrate within 24 hours and no legal counsel can be instrumental while delivering the power mandated under Entry 3 of List III Schedule 7 for the maintenance of public order as a result of which, it is taken into consideration that in quest of inhibiting rampant terror activities and separatist movement, the detaining authority may not be well equipped to gather strict evidences if judged according to the ordinary laws which could lead the accused to move at large.
Additionally, the long period of detention provides for exigencies, as it is difficult to catch hold of a dreaded terrorist or separatist leader and thus provisions such as bail and parole could militate against the security and integrity of the state. At the same time, it is also to be kept in mind that the legislation provides for judicial review vide Section 6(1) whereby any person aggrieved by an order passed under the Act can challenged the same in the High Court. Thus, considering the situation of the state and limited safeguards and scope judicial review, the legislation can be termed as a necessary evil.
On the other hand, it is universally accepted that, preventive detention laws are congenitally rigorous and are in violation of basic principles of human rights and criminal jurisprudence. However, with regard to the PSA, the case of Mian Abdul Qayoom v. State of J&K and Ors holding ‘subjective satisfaction’ of the detaining authority out of the purview of judiciary must be reconsidered. It is because such leverage leaves the State with unbridled power to invoke the Act and whimsically detain persons, and sometimes even disregarding the Proximate Linkage Test, as upheld in Shreya Singhal v. U.O.I as sine qua non to justify any restriction as a reasonable one under Article 19(2). Ironically, the PSA derives its power from Article 19(2) as averring the restrictions to be a reasonable one.
The line of reasoning in Mian Abdul Qayoom is tantamount to the act of unearthing the infamous ADM Jabalpur case which too delved into executive supremacy. Further, the limited scope of judicial scrutiny in the Act violates the detainee’s right of a fair and impartial trial contravening Article 10 of UDHR and Article 14(1) of ICCPR.
Additionally, it is imperative that, a layman detained under the Act, cannot be held to be well-versed with it, and hence the Act should provide at least for legal consultation, if not legal representation, though it is conceded that A. K. Roy v. Union of India held that no such rights can be accrued to the detenues. The Act, vide Section 13(2) mandates that ground of arrest prejudicing public interest may not be revealed to the detenue and also vide Section 16(2) vests the duty on the advisory board to determine whether such uncloaking of such grounds could jeopardize public interest.
However, it is to be noted that, the board can be constituted solely by 3 members and each of them can be retired persons from the judiciary and hence the government can exercise direct control over them, thus totally shredding off the veil of impartiality and fair trial from the advisory board.
Scope of improvement
As regards the scope of improvement, the propositions can be extended to all preventive detention laws. Following the recommendations of South Asian Human Rights Documentation, the subjective satisfaction of the detaining authority cannot be considered outside the purview of judicial review and thus the decision of Mian Abdul Qayoom with respect to PSA shall be reconsidered.
Moreover, for delivering a fair and just trial, it must be made compulsory under the Act, that an advisory board constituted must have majority of its members from the judiciary provided they are non-retired. It is conspicuous that the review by the advisory board can only be done once, and then the government can extend the period as it deems fit. However, it is proposed that there should periodical review as to assure that the detenues are not subjected to any custodial torture or other coercive methods.
Additionally, for the prevention of whimsical detention, it must be mandated that though authorities are protected under section 22 for bona fide acts, however, the 173rd Law Commission Report, following Article 9(5) of the International Covenant on Civil and Political Rights, mandated compensation for illegal detention. As a penultimate step, it is also suggested that rampant use of PSA and other similar legislation demands reconsideration of decisions such as A. K. Roy v. Union of India and detenues must be given some discernable rights in the quest for justice and free speech.
Legislations such as the PSA, though called a necessary evil, can led to sheer violation of fundamental rights due to the unrestricted powers they provide to the government. Hence, preventive detention law can prove to be a necessary element; however there must be a proper balance between rights of the people detained and national security. It is for the judiciary to define and delineate the contours of the detaining authority and pinpoint the loopholes in the legislation.
Moreover, for rapid response, the legislation may be allowed to contain less intricate procedures. However, once the person is detained, core-constitutional rights must be granted. Thus, assessing the present scenario, it can be concluded that, draconian laws such as PSA needs reconsideration more than ever.
Author: Ishan Mazumder from West Bengal National University of Juridical Sciences (NUJS), Kolkata.
Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.