A Comparative Study Of The Right To Be Informed Of The Reasons To Arrest In The Jammu And Kashmir Pu

A Comparative Study Of The Right To Be Informed Of The Reasons To Arrest In The Jammu And Kashmir Public Safety Act, 1978 And The European Convention Of Human Rights, 1953

Jonah Jesuraj Sanctus, School of Law, Christ (Deemed To Be University), Bangalore

ABSTRACT

India is the one of the few countries that still clings on to preventive detention as a lawful means to arrest/detain a person on the grounds of suspicion that some unlawful act can be committed that is prejudicial to public interest, security of state or foreign relations.1 The arbitrary power vested in the Constitution seems fairly evident. A more controversial legislation that validates preventive detention in its provisions is the Jammu and Kashmir Public Safety Act, 1978 (PSA, hereinafter). The PSA provides for detention of persons without trial. Section 13(2) of the PSA also provides that the detainee may not be informed of the reasons for his arrest if such communication may pose a threat to public interest. This can result in arbitrary arrests and detentions wherein the rights of the detainee are curbed. Article 5(2) of the European Convention on Human Rights, 1953 (ECHR, hereinafter) on the other hand provides that the reasons for arrest should be ‘promptly’ communicated to him. The ECHR takes a very strong stance on the rights of the detainee when compared to the PSA. The PSA and the ECHR clearly have different positions on the issue each catering to its own contexts. This paper seeks to critically analyse the right to be informed of the reasons of arrest in the PSA and compare the same right with that of the ECHR.

Keywords: Jammu and Kashmir Public Safety Act, 1978, European Convention on Human Rights, 1953, Section 13(2), Article 5(2), Public Interest.