Srinagar: The High Court has granted last and final opportunity to the government to file its counter-affidavit on a public interest petition challenging the legality of Public Safety Act (PSA), the preventive detention law.
The petition filed in 2019 by senior advocate Syed Tasaduq Hussain sought scrapping of the “controversial” law.
It was heard today by a bench of Chief Justice A M Magray and Justice Sanjay Dhar. The bench granted the last and final opportunity of two weeks to the respondent authorities to file their statement.
T M Shamsi, the Deputy Solicitor General of India submitted that the maintainability of the petition is to be first decided.
The petition challenges the legality of the preventive detention law saying “it is illegal because it contravenes 44th (1979) amendment to the Constitution of India and that the Union of India was bound to bring this amendment into force.”
“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,” pleaded the petitioner.
Underscoring that “power to detain is power of the state”, the petition read that a “divisional commissioner or district magistrate cannot detain a person”.
It also raises the issue of legal aid praying 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”.
The petitioner pointed out that for the last 46 years amendment to Article 22 of the Constitution of India (protection against arrest and detention in certain cases) has not been brought into force in J&K. He sought direction to the Union of India for bringing into force the said amendment.
“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,” he submitted.
