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HC seeks govt response to PIL challenging legality of PSA

Post by on Friday, August 19, 2022

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Srinagar, Aug 18: The High Court of Jammu & Kashmir and Ladakh Thursday granted a month's time to the government to file counter affidavit to a public interest litigation (PIL) challenging "legality" of Jammu and Kashmir Public Safety Act (PSA), 1978.
A division bench of Chief Justice Pankaj Mithal and Justice Wasim Sadiq Nargal provided further one month time to the government counsel, Aasifa Padroo to file the same and listed the matter for hearing on October, 27, 2022.
The PIL filed by senior counsel Syed Tassaduq Hussain in 2019 challenges the "legality" of the PSA, stating that the Act is illegal because it contravenes 44th (1979) amendment to the constitution of India.
"Union of India was bound to bring this amendment into force," it says.
Earlier, advocate general, D.C Raina had raised a preliminary objection over the maintainability of the petition.
Raina had submitted that the issue involved in the petition though is purely legal in nature, but as the matter is being adjourned for the purposes of final hearing, "let it be adjourned for a longer period, so that, if necessary, he may file the counter affidavit on facts as well."
In this connection, the court had asked advocate general to file counter affidavit in the matter.
It had also directed Union of India through Assistant Solicitor General of India (ASGI) to file response to the plea, "if he so desires."
Since then the matter is being adjourned by the court on the request of government counsel over one pretext or the other.
The petitioner, Hussain has pointed out that for the last 46 years amendment to Article 22 has not been brought into force in J&K and has sought direction to the Union of India for bringing into force the same.
"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.
The petitioner also challenges the legality of Sections 8 and 16 of the Act on the grounds of 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," he 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 contended 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 also Section 10 of the enactment was contrary to law. 
Moreover, the plea 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 petitioner has prayed that the PSA Act in J&K be scrapped.
The PIL also raises the issue of legal aid for the detenus who are poor people without financial means which, the petitioner 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 and Articles 20 and 21 to provide legal aid to the detenue."
Although, the PIL was filed in 2019 yet the government of India and J&K government (respondents) is playing dilly dallying tactics to delay the matter further by seeking frequent adjournments over one pretext or the other.


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