Jammu & Kashmir Public Safety Act

Jammu and Kashmir Public Safety Act made headlines when former Jammu and Kashmir Chief Minister Farooq Abdullah was detained under this act. This move was made when Supreme Court was about to hear the habeas corpus petition filed by MDMK leader Vaiko seeking for Farooq’s release. He was immediately detained in his Gupkar house. It is worthwhile to note that he has been under house arrest since August 5, the day when Presidential order was passed under Article 370 to abrogate the special status of Jammu & Kashmir.

What is J&K Public Safety Act?

J&K Public Safety Act 1978, was passed by the government led by Sheikh Abdullah who happened to be the father of Farooq Abdullah. The Act was enacted in the interest of the security of the State and public order. It contains for designating protected and prohibited areas, prevention of circulation of documents in the interests of communal harmony etc. Section 8 of the Act deals with the power of authorities to detain persons.

The Government can order the detention of a person-

  • To prevent him from acting in any manner prejudicial to security of the State or maintenance of the public order.
  • If he is a foreigner within the meaning of Foreigners Act
  • If he is a person residing in the area of the State under the occupation of Pakistan and it is necessary to regulate his presence or to expel him.

As per the definition given in Section 8, acting in any manner prejudicial to the maintenance of public order means-

  1. Promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on grounds of religion, race, caste, community, or region;
  2. Making preparations for using, or attempting its use, or using, or instigating, inciting, or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order;
  3. Attempting to commit, or committing or instigating, inciting, provoking or otherwise abetting the commission of mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;
  4. Attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order.

The District Magistrates and Divisional Commissioners are also empowered to authorize detention.

As per the Section 13(1), the authority making the detention should communicate to the detenu the reasons of detention so that he can make a representation against the order of detention. However, authority need not disclose such facts to the detenu which it considers to be against public interest to disclose.

Period of detention

The maximum period of detention in the case of persons acting in any manner prejudicial to the security of the State is two years. In case of a person acting prejudicial to the maintenance of public order, the maximum period of detention is 12 months.

Within four weeks of passing a detention order, the Government has to refer the case to an Advisory Board, which consists of a Chairperson, who is or has been a Judge of the High Court, and two other members who are, or have been, or are qualified to be appointed as Judges of the High Court. The Advisory Board has to give his opinion within 8 weeks of detention order. If the Advisory Board opines that there are sufficient causes for preventive detention, the Government can keep the person under detention for such period as it thinks fit, subject to the maximum limit.

Can detention be challenged?

The Advisory Board is supposed to examine if there are sufficient reasons for preventive detention. It is pertinent to note that the the detenu has no right to engage a legal practitioner before the Advisory Board.

The detention can be challenged in habeas corpus petitions filed before High Court under Article 226. However, the scope of challenge is limited to grounds of procedural violations. However, the High Court will not undertake substantive review of the merits of the detention.