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PIL challenging PSA: HC directs MHA to file response positively by next date of hearing

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Srinagar: In a public interest petition challenging the legality of the Public Safety Act (PSA), the High Court has asked the Ministry of Home Affairs (MHA), Government of India, to file its response positively by the next date of hearing.

PSA, a preventive custody law where under a person can be put behind the bars for years together without trial, was challenged in J&K High Court by senior advocate Syed Tassaduq Hussain in 2019.

The petition stated that the law is illegal because it contravened 44th (1979) amendment to the Constitution of India. The Union of India, it said, was bound to bring this amendment into force.

Interestingly, the respondents, including the MHA, have been consistently eschewing a counter-affidavit to apprise the court of its position on the “controversial” law.

In today’s hearing, Justices Rajnesh Oswal and Mohan Lal asked the lawyer representing the MHA to file its response by the next date of hearing positively. The matter was listed for April 04, 2023.

Interestingly, the Union territory government did finally come up with its compliance through its Additional Advocate General on 27th of the preceding month.

Hussain, who was present in person before the bench, pointed out in his petition 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 his 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.”

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