PSARA 2005 : Critical Review and Analysis
Economists often talk about the institutional constraints which hinder the growth and development of a country, and one important example of such a constraint is the legal system in India. In 1998, a commission for the review of administrative laws in India was set up to examine all the central acts, and sets of rules, regulations and administrative instructions issued under different central acts. It was reported that there were 2500 central laws in force besides a large number of overlapping rules, regulations and instructions, and some of them could not even be traced out from the records. Further the legislatures of the states have also the power to enact laws as per concurrent list III (Seventh schedule) of the constitution whereby the states also issued state rules where central acts with model rules may be available already. Labor laws Under article 246 of the Indian constitution, the subject of labor has been placed in the Concurrent List – except the labor and safety in mines, oilfields, and industrial disputes concerning union employees which were made the part of the Union list. Consequently, the enactment of labor laws by states has resulted in various loopholes such as inter-state variations in labor laws and their enforcement, the reports and returns under various labor laws are not uniform and standardized in all the states, and compliances are difficult as enforcement action varies from state to state. Moreover, in the case of a decision of discharge and/ or dismissal of a workman by the employer, it is the labor court which is to be satisfied with reasons, and if the labor court is not satisfied it may set aside the order of such discharge or dismissal. Similarly, a labor court may also set aside orders of reinstatements. Such blanket powers granted to the labor courts restrict the authority and freedom of employers, and that hinders the development of any industry. Private security industry Private security agencies were earlier required to comply with the statutory responsibilities under the labor laws and the rules prescribed thereunder, and other allied enactments like the Employees Provident Fund Act 1952, the Employees State Insurance Act 1948, the Equal remuneration Act 1976, the Minimum Wages Act 1948, the Workman Compensation Act 1923, the Payment of Gratuity Act 1972, the Interstate Migrant Workman Act 1979, and the Shops & Establishment Act 1958. Private Security Agencies (Regulation) Act (PSARA) was enacted in 2005 to oversee and regulate a large number of unregulated security groups and senas operating in the country. In the ‘Introduction’ to the Private Security Agencies (Regulation) Act 2005 it was laid that the growing tendency to hire private security guards had led to proliferation of private security agencies and there was a growing concern about the manner of functioning of these agencies, many of which were conducting their operations without any due care to even the verification of the an tecedents of the personnel employed as private security guards and supervisors. The union government was considering regulating the functioning of these private security agencies so that they are run within the legal parameters and are accountable to a regulatory mechanism. The private security agency regulation bill was passed by both the houses of parliament and received the assent of the President on 23 June 2005. This Act came into the statute book as ‘The Private Security Agencies (Regulation) Act 2005.’ Law and order – A state subject The seventh schedule of Article 246 of the Constitution has listed law and order/ police under the State List. Item 1 and 2 of the state list have often come in the way of any further mandate to be given to the center under Article 355, and any additional provision or amendment in the seventh schedule of Article 246, (State List), cannot be made without affecting the basic constitutional structure. Being a state subject, different state governments took their own time to frame state rules under PSARA. About twenty six states and UTs adopted PSARA and issued their rules at the end of 2010, and the remaining dispensed it by 2016. Analysis Any good law should be regulatory in nature. Though the acronym ‘PSARA’ connotes to ‘Private Security Agencies Regulation Act,’ but a number of provisions by way of restrictions and restrains inscribed in the Act are strangulatory in nature, and they are therefore not conducive for the growth and development of the sector. This can also lead to the legal wrangling and battles in the courts of law. In PSARA, some sections of the Act are not only restrictive but also vague and not properly worded. Their interpretations can vary and could create hurdles in the compliance of various provisions. Section 6(2) Section 6(2) of the Act lays down the eligibility criteria for procuring license for guarding services. The Section mentions that a person shall not be considered eligible for license for his firm, if the same is not registered in India; or is having the proprietor or a majority stakeholder or a director who is not a citizen of India. Intention of the provision is to allow licenses only to the companies and proprietors who are citizens of India; however, in the absence of any clear and direct limitation clause, there is a scope that the company could be run by someone from abroad by having stakeholders/ shareholders as Indian citizens. Section 7(4) Section 7(4) stipulates the need of making enquiries and verifications in writing for getting no objection certificate from the concerned authority for the purpose of registration and grant of license. The renewal of license under PSARA by the competent controlling authority is a painful, torturous and lengthy process. There are prolonged delays in view of the mind set of lower police functionaries. Further there is absence of proper dialogue or positive interaction between controlling authorities and the private security entrepreneurs which makes the process of verification and registration cumbersome and lengthy. Section 13 Section 13 defines the rank of controlling authority as the rank of…