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‘Last opportunity’ to file counter-affidavit to PIL challenging PSA’s legality: HC to govt

Post by Syed Rukaya on Saturday, November 5, 2022

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Srinagar, Nov 04:The High Court of Jammu & Kashmir and Ladakh has granted "last and final" opportunity to the government to file a counter affidavit to a public interest litigation (PIL) challenging "legality" of Jammu and Kashmir Public Safety Act (PSA), 1978.
Hearing a PIL seeking scrapping of PSA in J&K, a division bench of Chief Justice Ali Mohammad Magrey and Sanjay Dhar said, "last and final opportunity of two weeks is granted to respondents to file counter affidavit."
The Deputy Solicitor General of India (DSGI), T.M Shamsi questioned the "maintainability" of the PIL.
He submitted before the court that the "maintainability" of the writ petition is to be first decided.
The bench listed the matter for hearing on November 23, this year.
Previously, advocate general D.C Raina representing the J&K government had raised a preliminary objection over the maintainability of the petition.
He contended that 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.
Raina had further submitted that insofar as Sections 8 and 16 of the J&K Public Safety Act are concerned, the same are in consonance with the provisions of the Constitution of India.
On December 02, 2019, the court had asked the advocate general to submit a written compilation of the objections.
It had also directed the Union of India through Assistant Solicitor General of India (ASGI) to file response to the plea, "if he so desires."
The PIL filed by senior advocate Syed Tassaduq Hussain in 2019 challenges the "legality" of the PSA.
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.
Advocate Hussain 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.
He 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.
It 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 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."

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