Excelsior Correspondent
JAMMU, Aug 20: A Division Bench of Chief Justice Pankaj Mithal and Justice Wasim Sadiq Nargal granted a month’s time to Additional Advocate General Asifa Padroo to file counter affidavit in a Public Interest litigation challenging legality of J&K Public Safety Act (PSA) 1978.
The PIL is challenging the legality of the PSA and seeks its scraping. “PSA is illegal because it contravenes the 44th (1979) Amendment to the Constitution of India. Union of India was bound to bring this amendment into force,” underlines the PIL.
“Section 8 of the PSA should be declared illegal because the government has to approve the detention but it cannot approve without hearing the detenue,” it says.
While the PIL states that “power to detain is power of the state”, it says that a “divisional Commissioner or District Magistrate cannot detain a person.”
Moreover, the plea highlights that the detainee cannot be moved from one place of detention without show cause. “In 1978, J&K Legislature lacked legislative power to enact a provision under which a detenue can be detained and lodged in any jail outside Jammu and Kashmir,” the petitioner contends.
The Advocate General of J&K DC Raina had previously raised a preliminary objection on the maintainability of the petition. “The PSA was in consonance with the constitution as the amendment to Article 22 of the Constitution would be automatically extended to J&K after the Abrogation of Article 370.”
The Advocate General had further submitted that insofar as Sections 8 and 16 of the J&K Public Safety Act are concerned, the same are in consonance with the provisions of the Constitution of India.
On 2 December 2019, the court had asked the Advocate General to submit a written compilation of the objections.
In the PIL, advocate Hussain has also raised the issue of legal aid which, he says, the State is bound to provide to a detainee booked under PSA. “Where the State detains a person under PSA, it has a duty under Article 22 of the constitution read with articles 20 and 21 to provide legal aid to the detainee,” he said.
Subsequently, Member Secretary, J&K Legal Services Authority and Ladakh Legal Services Authority, filed compliance reports and the Authority was further asked by the court to update the compliance/status reports.
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