Jammu and Kashmir High Court has sought government’s response to a Public Interest Litigation (PIL) challenging “legality” of Public Safety Act.
The division bench of Chief Justice Pankaj Mithal and Justice Vinod Chatterji Koul asked Advocate General D C Raina to file response to the PIL within a month.
The court asked senior counsel Syed Tasaduq Hussain for the petitioner, to file rejoinder to the response to be filed by the government within two weeks thereafter. The plea will come up before the court for further consideration on August 24.
The PIL challenges the “legality” of the PSA and underlines 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.
While the petition points out that for last 46 years amendment to Article 22 has not been brought into force, it seeks direction from the court 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,” the petition pleads.
“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,” it pleads.
Underscoring that “power to detain is power of the state” the petition says that a “divisional commissioner or district magistrate cannot detain a person”.
Moreover, the petitioner submits before the court 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.
The petitioner contends that amendment to Article 22 of the Constitution of Indian 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 which, it says, the state is bound to provide 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.”
HC orders release of PSA detainee
J&K High Court has quashed detention of a person from south Kashmir’s Pulwama district who was booked under Public Safety Act in July last year.
A bench of justice Javed Iqbal Wani quashed the detention of Muhammad Rafi Mir and directed the government to release him from preventive custody forthwith if not required in any other case.
Mir was taken into preventive custody in terms of detention order dated 13.07.2020 passed by District Magistrate Pulwama.
In his habeas corpus petition Mir had challenged the detention order through advocate Wajid Haseeb on the grounds that he was booked under PSA when he was already in custody in an FIR and that his representation against his detention was not considered by the detaining authority.
The petitioner submitted that he was arrested in January 2020 in case (FIR 03/2020) registered at Police Station Khrew and while being in custody came to be detained under preventive custody by the detaining authority. He said the detaining authority despite having the knowledge of the said fact detained him without spelling out any compelling reason in the grounds of detention.
The petitioner also submitted that he had not been provided copies of dossier, FIR, and other material referred to in the grounds and in this way was deprived of the right to file an effective representation against his detention. Referring to the judgement of the apex court passed in Surya Prakash Sharma Vs. State of U.P and others, the court said: “. . . the detaining authority has not drawn any satisfaction as per the mandate laid down by the apex court while passing the detention order against the detenue.”
With regard to the representation made on behalf of the detenue by his father acknowledged to have been received by the office of District Magistrate, Pulwama on 18.07.2020, the court said failure of the respondents to consider the representation indisputably amounts to violation of the provisions of Article 22(5) of the constitution.