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HC seeks govt response to PIL challenging maintainability of PSA

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Gives it month’s time to file counter-affidavit

Srinagar: In a Public Interest Litigation seeking determination of the maintainability of controversial preventive detention law, the Public Safety Act (PSA), J&K High Court on Thursday granted a month’s time to the Union Territory Administration to file its counter-affidavit.

PSA, under which hundreds of political activists are lodged in jails in and outside J&K without trial, was challenged in the form of a PIL by senior advocate Syed Tasaduq Hussain in 2019.

The matter challenging the legality of the Act was listed today for hearing by the division bench of Chief Justice Pankaj Mithal and Justice Wasim Sadiq Nagral.

Asifa Padroo, the state attorney, prayed for and was allowed a month’s time to file a counter-affidavit.

The court has already made it clear that the issue of maintainability of the petition was to be settled first in keeping with an earlier court order.

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,” reads the petition.

It says “amendment provided drastic changes that a person could be detained under PSA initially only for a period of two months and that chairman of the advisory board would either be Chief Justice of the state or a sitting judge of the High Court so that the matter is reviewed dispassionately”.

Union of India, according to the petition advocate, is flouting and violating the will of the Parliament which is a negation of democratic temper of the Constitution of India.

While the petition points out that for the last 46 years amendment to Article 22 has not been brought into force, it seeks direction from the court to the Union of India for bringing into force the same.

“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,” the petitioner pleads.

Underscoring that “power to detain is power of the state” the petition says that a “divisional commissioner or district magistrate cannot detain a person.”

Moreover the petitioner submits before the court that the detainee cannot be moved from one place of detention without show cause. The petitioner is relying on a judgment of the House of Lords in England which, he submits, still holds good.

The Advocate General of J&K has 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”, is the government’s stand before the court.

Meanwhile, with regard to the number of PSA detainees who were provided legal aid, the High Court directed Member Secretary J&K Legal Services Authority and Ladakh Legal Services Authority to update the compliance status report. Earlier the court had sought such details from SLSA.


In the PIL, Hussain has raised the issue of legal aid which, he says, the state is bound to provide to a detenu 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 detenue,” Hussain pleads in the PIL.


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