Excelsior Correspondent
Srinagar, Nov 4: The High Court today granted the final opportunity to the Government to file its response to a Public Interest Litigation challenging legality of Public Safety Act (PSA).
The Division Bench of Chief Justice Ali Mohammad Magrey and Justice Sanjay Dhar granted the last and final opportunity of two weeks to respondents to file counter affidavit in opposition to the contention raised in the PIL. However, the Union counsel TM Shamsi submitted before the bench that the maintainability of the writ petition is to be first decided.
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. The Union of India was bound to bring this amendment into force.”
As per the pleadings, it is said 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.
It is submitted that the ‘power’ to detain is power of the State and Divisional Commissioner or District Magistrate cannot detain a person. Moreover, the petitioner has added that the detainee cannot be moved from one place of detention without show cause.
Advocate General of J&K DC Raina had previously raised a preliminary objection on the maintainability of the petition. He argued that 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 and 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.
In the PIL, the petitioner has also raised the issue of legal aid which, he says, the State was bound to provide to a detainee booked under PSA. He adds that 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.
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