Excelsior Correspondent
Srinagar, Oct 16: High Court dismissed the Public Interest Litigation challenging legality of Public Safety Act (PSA) after abrogation of Article 370.
The PIL was filed after abrogation of article 370 and changing the status of erstwhile State of J&K into UT challenging the legality of the J&K Public Safety Act (J&K PSA) and seeks its scrapping.
“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,” highlights the PIL filed by the Senior Advocate Syed Tasaduq Hussain.
“In view of the preceding analysis, this Public Interest Litigation is, accordingly, rejected as not maintainable. However, the leftover persons who have not challenged the detention orders passed against them under the Jammu and Kashmir Public Safety Act shall be at liberty to question the same”, Division Bench of Chief Justice Tashi Rabstan and Justice M A Chowdhary concluded.
It was also pleaded that 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. Underscoring that “power to detain is power of the state” the petitioner argued that a “divisional commissioner or district magistrate cannot detain a person. Moreover, advocate Hussain submitted that the detainee cannot be moved from one place of detention without show cause.
The Advocate General of J&K DC Raina raised a preliminary objection on the maintainability of the PIL. He said 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.
It was contended by the petitioner-counsel that the issue of legal aid which the State was 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.
The Advocate General has vehemently argued that as the persons who are detained under the Public Safety Act have already approached this Court by filing habeas corpus petitions questioning therein their detention orders, which fact is also admitted by the petitioner, therefore, the issue raised in this PIL cannot be considered as it would tantamount to double adjudication on the same issue. “Since the issue of detention of citizens as raised in this petition is already pending adjudication before this Court, therefore, in our considered opinion, this PIL is not maintainable as being a parallel litigation”, DB added.
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