‘Not maintainable’: High Court rejects PIL challenging legality of PSA

Srinagar, Oct 16: The High Court of J&K and Ladakh has dismissed as “not maintainable” a Public Interest litigation challenging legality of J&K Public Safety Act (PSA) 1978.

The PIL filed by senior advocate Syed Tassaduq Hussain in 2019 had raised questions over the legality of the Act and was seeking its scrapping.

The plea raised the question that the amendment effected in Article 22 of the Constitution of India “has not been brought into force in Jammu and Kashmir”.

The Act, the plea said, 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 said.

“The delegation of powers to detain the persons under Sections 8 and 16 of the Jammu and Kashmir Public Safety Act, 1978 in Divisional Commissioners or District Magistrates was illegal, and such power lies with the State”.

The plea had sought court’s intervention to declare Section 8 of the PSA as “illegal” because the Government has to approve the detention it cannot do it without hearing the detenue,”

Moreover, the plea highlighted that the detainee cannot be moved from one place of detention without show cause.

“In 1978, J&K legislature lacked legislative power to enact a provision under which a detenue can be detained and lodged in any jail outside Jammu and Kashmir,” the petitioner contended.

In its judgment that came in response to the PIL, a division bench of Chief Justice Tashi Rabstan and Justice MA Chowdhary observed that “instant Public Interest Litigation has been filed by the petitioner invoking jurisdiction of this Court in view of the fact that about 2000 people have been detained and 253 habeas corpus petitions post lockdown have been filed”.

Advocate General D.C Raina vehemently argued that as the persons who were detained under the Public Safety Act have already approached the High Court by filing habeas corpus petitions questioning their detention orders, therefore, the same could not be considered as it would tantamount to double adjudication on the same issue.

“Since the issue of detention of citizens as raised in this petition is already pending adjudication before this Court, therefore, in our considered opinion, this PIL is not maintainable as being a parallel litigation,” the court said and rejected the plea.

“However, the leftover persons who have not challenged the detention orders passed against them under the Jammu and Kashmir Public Safety Act shall be at liberty to question the same,” it added.

The petitioner stated in the PIL that about 2000 people had been detained and 253 habeas corpus petitions had been filed post lockdown.

The Home Department in its preliminary objection to the plea stated that the relief sought was not permissible under law in view of authoritative pronouncement of the Apex Court in case of A.K Roy vs. Union of India, reported in 1982.