Jammu and Kashmir Public Safety Act, 1978

While Amnesty does not consider either of the sources entirely reliable, it stresses on the fact that government stats are often inconsistent, for example, it says for 1997, the NCRB notes 725 detainees, but in a reply to a petition before NHRC, the Central Government counsel submitted on record that as of December 1997, 1016 persons were held under preventive detention in J&K.

Role of Detaining Authorities

An order of administrative detention under the PSA can be passed by the District Magistrates and Divisional Commissioners, thus making it a purely executive exercise of power.
The Supreme Court of India has stated: "Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law… Preventive detention is often described as a "jurisdiction of suspicion". The detaining authority passes the order of detention on subjective satisfaction… To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital."

Lack of SOPs

An RTI application to the J&K Home Department filed by members of the J&K RTI Movement revealed that the State Government of J&K has not made any Rules or Standard Operating Procedures under PSA, during the four decades of its existence. Every year the detaining authorities have been issuing detention orders without any SOPs to guide them except the reports and dossiers prepared by the J&K Police.

Failure to Scrutinize Evidence

In an interview with Amnesty International, a former District Magistrate said that the Magistrates do not have dedicated assistance available, which could verify and seriously examine the police version, thus the District Magistrate as to necessarily rely on the reports filed by the police. Thus reducing their role to mere rubber stamps.
Amnesty India observed a common flaw in the detention orders where the detaining authorities reproduced word-for-word the dossier given by the police which contained the allegations against the person detained.
Many such detention orders have been quashed by the High Court, for example in May 2017, a detention was quashed by the High Court, stating among other reasons: "Perusal of grounds of detention would show that it is a verbatim copy of Dossier of Senior Superintendent of Police submitted by him to the Concerned Magistrate."

Role of Advisory Boards

Since the PSA does not make any provision for judicial review or any appeal process to detainees, under Section 14 of the PSA, a non- judicial body, Advisory Board is set up to review detention orders and determine whether there is sufficient cause for detention. The Advisory Board examines the case only in the initial stages of the detention. There is no provision in the PSA to appeal against the decision of the Advisory Board.

Appointment

Advisory Board consists of two members and a chairperson, which are appointed by the government. Prior to the Jammu & Kashmir Ordinance 2018, the members of the Advisory Board were appointed by the Government in consultation with the Chief Justice of the High Court.
The ordinance removes the mandatory requirement of consultation with the Chief Justice of the J&K High Court. Now the members – provided they were not sitting judges – would be appointed by the government on the recommendations of a 3-person committee made up of senior state bureaucrats. Thus enhancing the role that the executive play and reducing the independence of the Advisory Board.

Functioning

The Advisory Board is required to review the grounds of detention and the representation, if any, by the person detained. Anyone detained under PSA is not entitled to legal counsel.The board is known for almost always upholding the detention orders passed by executive officials. For example, an RTI application filed by two students of the Department of Law, University of Kashmir revealed that the Advisory Board was referred 1004 detention orders by the State Government between April 2016 and mid-December and it found sufficient cause to uphold the detention order in 99.40% cases.
The J&K High Court quashed more than 81% of the detention orders that the Board upheld earlier in the same period. The RTI also revealed that the Advisory Board spent more than 75% of its total expenditure in 2016-17 to uphold detention orders which were quashed later on by the court. It was observed by Amnesty International was informed that in many cases, detainees refuse to file representations before the Advisory Board, as they see no hope of a proper hearing.

Criticism from Judiciary and Civil Societies

During a preventive detention case under PSA in 1982, the Supreme Court of India said: "danger looms large that the normal criminal trials and criminal courts set up for administering justice will be substituted by detention laws often described as lawless law".
Indian lawyer and constitutional expert A. G. Noorani said PSA is "patently, manifestly and demonstrably unconstitutional", adding that it is a way of bypassing "civilized jurisprudence" and "a devious way to imprison political opponents". "The upper limit on the period of detention is frequently violated" notes historian Mridu Rai. Mohmad Aabid Bhat writes in Insight Turkey that the excuse of "public order" and "security" is being used to justify inhumane laws such as PSA.
A report by Observer Research Foundation titled "Life in Kashmir after Article 370" dated 28 January 2020 recommended the immediate repeal of the PSA.