JAMMU: The Jammu & Kashmir government has defended the validity of Section 18 of the J&K Public Safety Act before the Jammu & Kashmir High Court (Mustafa MH v. Union Territory of Jammu and Kashmir and Others).
In an affidavit submitted before the High Court, the Union Territory of J&K contended that the PSA Act though applicable to erstwhile State of J&K was retained by the Parliament by way of Jammu & Kashmir Reorganization Act, 2019 for application to the Union Territory of J&K even after the bifurcation of the State into two UTs.
The J&K Reorganization Act had bifurcated the erstwhile State of Jammu and Kashmir into two Union Territories i.e. Union Territory of Jammu and Kashmir and Union Territory of Ladakh.
All such laws which have been retained are considered as laws made by the Parliament for the Union Territory of J&K, it added.
The affidavit was filed in response to a plea before the High Court challenging the constitutional validity of Section 18 of the PSA, which prescribes the maximum period of preventive detention allowed under the Act.
The plea by Advocate Mustafa MH contended that after the abrogation of Article 370 of the Constitution, Section 18 is hit by Article 22(7) of the Constitution which hitherto did not apply to J&K.
“The maximum period of punishment in the preventive detention cases should be as per Article 22 (7) of the Constitution of India. Section 18 of the Public Safety Act 1978 is violative of Article 22 (7) of the Constitution of India,” the petition said.
Section 18 of the Public Safety Act reads as follows:
“Maximum period of detention.
1. The maximum period for any person may be detained in pursuance of any detention order which has been confirmed under section 17, shall
a. Twelve months from the date of detention in the case of persons acting in any manner prejudicial to the maintenance of public order or
indulging in smuggling of timber; and
b. Two years from the date of detention in the case of persons acting in any manner prejudicial to the security of the State.
2. Nothing contained in this section shall affect the powers of the Government to revoke or modify the detention order at any earlier time, or extend the period of detention of a foreigner in case his expulsion from the State has not been made possible.”
Article 22(7) states that Parliament may by law prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board.
It also states that Parliament may by law prescribe the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention.
The petitioner contended that since the special status of Jammu and Kashmir was done away, the residuary powers of the State of Jammu & Kashmir with respect to the preventive detention law will also no longer remain the same.
Hence, Entry 9 of the Union List and Entry 3 of the Concurrent List of the Constitution of India shall now be applicable to J&K, the plea said.
Therefore, Section 18 of the PSA, which was earlier saved from the applicability of Article 22(7), will no longer remain the same. Due to the applicability of Article 22(7) to the Union Territory of Jammu & Kashmir, Section 18 shall be violative of Article 22 of the Constitution of India, it was contended.
This is because the law made by Parliament as per Article 22(7) – the National Security Act – provides for a maximum punishment of 1 year and the said law overrides the Public Safety Act.
A Bench of Justices Dhiraj Singh Thakur and Javed Iqbal Wani had in February 2021, sought the response of the Union Territory of J&K in the plea.
The Union Territory, in its reply, has contended that there is no provision in any law which either expressly or by necessary implication bars Parliament to prescribe the maximum period of detention as done by Section 18.
This is not the first time that for a particular State/Union Territory, Parliament has prescribed the period of detention which is different from the period prescribed under National Security Act, 1978, the affidavit said. The said Act had been amended in relation to State of Punjab and the Union Territory of Chandigarh in 1984 to provide that the period of detention of “twelve months” shall be “two years” in relation to State of Punjab and Union Territory of Chandigarh, the affidavit added.
Similarly, the Jammu & Kashmir Public Safety Act, 1978 has been retained by Parliament by exercising powers under Article 22(7) of the Constitution of India to provide that maximum period of detention for an act which is prejudicial to the security of the State shall be two years, which is in consonance with the constitutional position, the affidavit said.
There is no contradiction between the National Security Act and the Jammu & Kashmir Public Safety Act. Both the enactments, it was submitted, have been made applicable to the Union Territory of Jammu & Kashmir.
“The maximum period of detention as provided in the Jammu and Kashmir Public Safety Act will be applicable only in the Union Territory of Jammu and Kashmir. This law has specifically made for the Union Territory of Jammu and Kashmir keeping in view the present security scenario in the Union Territory,” it was contended.
The affidavit also cited the pendency of petitions challenging the Jammu & Kashmir Re-Organisation Act, 2019 and abrogation of Article 370 before the Supreme Court.
“When the challenge to the genesis of the Act is pending consideration before the Hon’ble Supreme Court, consideration of the issue involved in the instant matter by this Hon’ble Court (High Court) may not be appropriate in law,” it stated.
It may, therefore, be apt to defer the proceedings in the present case till the disposal of the writ petitions by the Supreme Court, the government submitted.
Additional Advocate General Aseem Sawhney represented the Union Territory of J&K.
Counsel for the petitioner, Advocate Zulker Nain Sheikh sought time to further prepare the matter.
The matter will be heard next on May 17. (Courtesy: Bar & Bench)