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Constitutionality of National Security Legislation in J&K

The union territory of Jammu & Kashmir, since it acceded to the Indian Territory, has remained vulnerable for its security reasons. The security problems in the Union Territory further deteriorated from the ’90s. The article provides an overview of security laws in India along with their applicability and constitutional validity in Jammu & Kashmir.

By: Syed Suhaiba Geelani, 4th Year BA LL.B, University of Kashmir.

Background

After attaining independence, one of the most important concerns before the then government of India was the issue of maintenance of security in the country. For this purpose, a series of laws were being enacted, regulated, amended, repealed from time to time as per the needs.

Immediately after independence Preventive Detention Act (PDA) was enacted to combat the challenge of violence, disruption, displacement due to the partition. It was enacted in 1950 and repealed in 1969.

In 1971 the Maintenance of Internal Security Act (MISA) came into being which after amending several times was finally repealed in 1977. Then National Security Act (NSA) described as no vakil, no daleel, no appeal, came into force in 1980 and is still in operation, recently invoked in New Delhi to meet the protests against the Citizenship Amendment Act and National Register of Citizens. 

Besides these, many other national security laws were promulgated; Terrorist and Disruptive Activities (Prevention) Act, The Prevention of Terrorism Act, the Unlawful Activities (Prevention) Amendment Act.

Security Laws applicable to Union Territory of Jammu & Kashmir and their Constitutional Validity

The National Security legislations are harsh laws, conferring extraordinary powers on the government and are highly criticised for overriding human rights. It has been alleged that sometimes these laws are used against the critiques of the government and their policies. As far as, the union territory of Jammu & Kashmir is concerned, since it acceded to the Indian Territory it has remained vulnerable for its security reasons. The security problems in the Union Territory further deteriorated from the ’90s. The list of security laws applicable to Jammu & Kashmir along with their constitutional validity are provided below:

Armed Forces (J&K) Special Powers Act, 1990

 AFSPA was enacted in 1958. It draws legitimacy from Article 246(1), Entry 2A of List I, and Article 335 of the Constitution. 

Entry 2A List I read “Deployment of any armed force of the union or any other force subject to control of the Union or any contingent or Unit thereof in any state in aid of the civil power, powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.”

The centre may, in order to ensure the maintenance of public order, choose to deploy its armed forces or any other force under its control “in aid of the civil power”.

The Act provides special powers to the armed forces for maintaining “public order” in the “disturbed areas”.

The AFSPA provides the power to the Government to declare any part of the country as a disturbed area. AFSPA provides power to armed forces to acquire control of the disturbed area and to execute any kind of force therein.

They can arrest any suspected person without any warrant, conduct search operations without a warrant, they can shoot any person suspected to be violating the law.

In 1990, it was extended to the Union Territory of Jammu & Kashmir (then referred to as state) to meet the challenge of rising insurgency in the then referred to as a state.

The Law is so harsh that it has grabbed the attention not only at the national level but at an international level too. Many Provisions are vague. Many terms are left out without describing them. 

The constitutional validity of this Act was challenged in the Supreme Court of India in Naga People’s Movement of Human Rights v. Union of India. “The Supreme Court upheld the constitutional validity of the Act and decided that it is a law in respect of maintenance of public order enacted in exercise of legislative power and not open to challenge. However, certain guidelines in the form of do’s and don’ts regarding the application of the provisions of the Act were provided. The guidelines provided that; no individual should be detained for a period beyond required by law, the individual detained should be handed over to the nearest police station, no force should be inflicted on any person except in case if he tries to escape from custody”.

Unlawful Activities (Prevention) Act, 1967

The UAPA provides power to the government to declare any organization as “unlawful” and to restrict some activities on grounds of disrupting the sovereignty of the nation.

The prevention of terrorist activities is now included in the same Act by way of Amendment which was earlier within the ambit of TADA and POTA Act, that now stands repealed.

The Supreme Court in Sri Indra Das v. State of Assam scrutinized Section 10 of the Act. It was argued before the court that the mere association with a banned organization cannot be put forth as a ground for arrest of a person.

The Court held that the literal interpretation of this provision will be violation of Article 19 and 21 of the constitution. The Court held that ‘mere membership of a banned organization will not make a person criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence’.

The Court presently is hearing two separate challenges to the constitutional validity of the 2019 amendments to the Unlawful Activities (Prevention) Act, 1967.

Jammu & Kashmir Public Safety Act, 1978

The Public Safety Act, 1978 of Jammu and Kashmir is a defensive detention law that allows taking a person into custody to prevent him or her from acting in any matter that is prejudicial to “the security of the state or the maintenance of the public order”.

As per the provisions of the Act, a person can be held under the Act for 2 years without a trial.

This detention is said to be protective detention and this is the most common ground put forth for detention.

Article 22(3) allows for preventive detention and restriction on personal liberty for reasons of state security and public order.

The detention order can be challenged before the High Court by filing a Habeas Corpus petition under Article 226 of the Indian Constitution. 

In the case of Mohammad Rafiq Sofi & Ors. V. State of J&K (2018), the preventive detention order was quashed by the high court because the district Magistrate copied the whole report of the police. The court quashed the order on the basis of the non-application of mind.

Conclusion

Any state is concerned with the maintenance of security and public order within its territory. In relation to Jammu & Kashmir many security laws; AFSPA, PSA, UAPA, and NSA are applied. The NSA came into force in Jammu & Kashmir after the abrogation of Article 370 when all the laws of India along with the security laws became applicable in the union territory altogether. These laws are time and again are criticised for their harsh nature. The authorities and judiciary reiterated the applicability of these exceptional laws necessary in order to attain security and public order. It has been argued that in order to fulfil the purpose of maintenance of security, integrity in the state the citizens should not be suffered and, hence, a proper balance should be made.

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