Srinagar: The High Court of J&K on Tuesday granted the government “last and final” opportunity to file its response to a Public Interest litigation (PIL) challenging legality of Public Safety Act (PSA).
“Last and final opportunity is granted to the respondents (authorities) to file the counter-affidavit,” said a bench comprising acting Chief Justice Tashi Rabstan and Justice Rajesh Sekhri said while hearing the PIL.
The PIL filed by senior advocate Syed Tassaduq Hussain in 2019 challenges the “legality” of the “controversial” preventive detention law.
It stated that the Act is illegal because it contravenes 44th (1979) amendment to the Constitution of India. The Union of India was bound to bring this amendment into force, it says.
Hussain pointed out that for the past 46 years, amendment to Article 22 has not been brought into force in J&K. He accordingly has sought direction to the Union of India for bringing into force the modification.
“Amendment provided drastic changes that a person could be detained under PSA initially only for a period of two months and that the 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,” says the PIL.
It also confronts the legality of Sections 8 and 16 of the Act on the grounds of being in violation of Article 14 of the Constitution of India.
“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 lawyer pleaded.
The plea underscored that “power to detain is power of the state” and a “divisional commissioner or district magistrate cannot detain a person”.
It said that the delegation of powers to detain the persons under Sections 8 and 16 of the J&K PSA, 1978 in Divisional Commissioners or District Magistrates “is illegal” and that the Section 10 of the enactment was also contrary to law.
The petitioner stated 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.
He contended that amendment to Article 22 of the Constitution of India was made by the Parliament and also received the assent of the President of India and became law.
The PIL also raises the issue of legal aid for the detenues, who it said are poor people without financial means.
He said the state is bound to provide legal aid to a detenue booked under PSA. “Where the state detains a person under PSA, it has a duty under Article 22 of the Constitution and Articles 20 and 21 to provide legal aid to the detenue.”
