moot court promblem
princehashmi
(Querist) 18 June 2010
This query is : Resolved
on what basis j & k public safty Act is against to constitution of india,can it be applicable to minors.
tarun goyal
(Expert) 19 June 2010
it has been argued that the act falls short of the recognized norms of justice, such as equality before law, the right of the accused of appearance before a Magistrate within 24 hours of arrest, fair trial in public, access to counsel, cross examination of the witnesses, appeal against conviction, protection from being tried under retrospective application of law and many other such provisions.further
the Act was promulgated in 1978 (amended in 1987 and 1990) in Jammu and Kashmir empowering the state government to detain a person without trial for two years under the pretext of maintenance of public order. Legal experts say that PSA, which operates in Jammu and Kashmir, differs from the act operating in rest of the country. Jammu and Kashmir Public Safety Act-1978 (JKPSA-1978) was amended in the year 1990 which made it possible for extending the operation of the act beyond the State, enabling the State machinery to keep detainees in the jails of India, outside the State. Experts opine that state government can recommend review of Public Safety Act but the same has never been done. They add that respective governments since 1978 have used the law to their fullest advantage but have never sought a review of this act. It also prevents taking action against an individual who acts in "Good faith", added the senior leader.
He maintained that under Section 22 of the Act, any legal proceeding against officials for acts "done in good faith" are also disallowed. An expert on legal issues, said that under PSA, detainees are not informed of the reasons of their arrest and they are kept in custody for a much longer period of time than stipulated in the Act. "They are not allowed to meet their relatives and counsels which is highly unfortunate when seen in the light of the fact that our country got independence from these acts in 1947," remarked the expert. Reports of Amnesty International (AI) and other human rights organizations suggest that people detained under the PSA also run a high risk of being tortured, as many are denied access to family or lawyers for long periods. These reports also indicate that torture is widely used in police stations and interrogation centres in Jammu and Kashmir to extract confessions or information, to humiliate or punish detainees, leading to dozens of reported deaths in custody.
it has been reported that"Hundreds of people are held in preventive detention or on a range of criminal charges despite court orders for their release. When the state anticipates that detainees will be released on bail, it uses PSA to ensure their continued detention," .
Amnesty International reports say that PSA is a vaguely formulated act which allows detention for up to two years without charge or trial on the purported presumption that they may in the future commit acts harmful to the state. It adds that lawyers in Jammu and Kashmir have consistently challenged specific PSA cases in the courts, but the government has blatantly disregarded court orders quashing detention orders or granting bail. "Such disregard completely undermines the role of the courts to protect human rights" maintains report of the United States department of states.
i think this can be a guidance note for your moot preparation.
