The recent arrest of the Aam Aadmi Party’s lone MLA in Jammu and Kashmir under the Public Safety Act (PSA), a preventive detention law that allows authorities to hold individuals without trial for up to two years, after he allegedly used unparliamentary language against an official over a compensation issue, raises the question: should a democracy retain such a sweeping law? In sensitive J&K, the State often asserts its need for extraordinary powers—authority above and beyond routine legal processes—to tackle terrorism supported from across the border. However, the draconian PSA—enacted in 1978 to counter timber smuggling—is now invoked not only for national security threats, but also for disturbances to public order.
Preventive detention can appear to be an instrument of political convenience if political or civil society leaders are booked under such laws, apart from terrorists or participants in orchestrated disruptions. The PSA also risks being viewed as an informal justice system; it allows the same individuals to be detained multiple times. Numerous cases have reached the courts in J&K against the application of this law in situations that are not security threats. The law also helped detain J&K’s top political leadership for protesting the abrogation of Article 370. One must question the PSA’s relevance when it imparts pre-emptive punishment without the rigour of trial and undermines human rights and democratic ethos. If a sitting MLA can be detained without bail or trial, citizens are entitled to wonder who decides what constitutes a threat, on what evidence, and under whose oversight.
The governance context adds complexity. Omar Abdullah, the elected chief minister, accused the “unelected government”—the lieutenant governor’s administration—of raising the matter of blurred accountability structures. The inference is that, unlike an elected government, the LG administration does not face the people or derive legitimacy from them. Even without the PSA, J&K’s security arsenal has enough legal tools to tackle genuine threats. Long detention, under any law, is never the default option. Prosecution through regular courts is a transparent alternative that is available. Importantly, the powers of policing and security should be in the hands of elected leaders, so that political decisions, including the use of extraordinary laws, remain accountable. A confident democracy can easily secure both national security and individual liberty.