PIL challenging validity of PSA: DB issues notices to CS, Law Secy; seeks response within four weeks



JAMMU: Division Bench of J&K High Court, Jammu wing comprising Justice Dhiraj Singh Thakur and Justice Javed Iqbal on Tuesday issued notice to Chief Secretary and Law Secretary in a Public Interest Litigation (PIL) filed by one Mustafa Haji challenging constitutionality of section 18 of Public Safety Act, 1978.
While hearing Advocate Zulker Nain Sheikh appearing for petitioner, the Division Bench has issued notice to the Law Secretary, Department of Legal Affairs, Chief Secretary, Govt of J&K and Secretary to Department of Law, Justice and Parliamentary Affairs. Deputy AG Aijaz Lone received notices on behalf of respondents. DB further directed to file response within four weeks.
Advocate Zulker Nain Sheikh, while arguing matter, submitted that Section 18 of Public Safety Act 1978 is violative of Article 22(7) of Constitution of India. Since the special status of Jammu and Kashmir has been done away with and Article 370 has been abrogated, the residuary powers of state of Jammu and Kashmir with respect to preventive detention laws will also no longer remain the same. Entry 9 of union list and entry 3 of the concurrent list of the Constitution of India shall not be applicable to the state of Jammu and Kashmir. Therefore section 18 of Public Safety Act 1978, which was earlier saved from applicability of section of Article 22(7), will no longer remain the same and due to the applicability of article 22(7) now to the Union Territory of Jammu and Kashmir, Section 18 of Jammu and Kashmir Public Safety act shall be violative of Article 22 of Constitution of India. The maximum period of detention under National Security Act therefore remains one year as mentioned under section 13 of Section 18 of the Public Safety act 1978 of Jammu and Kashmir on the other hand talks about a maximum punishment for two years in the case of actions which are against security of state and therefore is in conflict with section 13 of National Security Act 1980 and therefore ultra vires.
On the other hand, Advocate General D C Raina appeared for UT of J&K and sought time to file response and was granted 4 weeks time to file the response. Advocate Sheikh further contended that since both the National Security Act of 1980 and Jammu and Kashmir Public Safety act 1978 are applicable to Jammu and Kashmir, there is a direct conflict between two acts with regard to the maximum punishment both the laws prescribes. And since the maximum punishment for the preventive detention as per Article 22(7) of the Constitution shall be decided by Parliament and since further the National Security Act 1980 is the law made by the Parliament the maximum punishment as decided by National Security Act should be taken as a position with regard to the maximum punishment in preventive detention and therefore section 18 of Jammu and Kashmir Public Safety Act 1978, which prescribes maximum punishment of two years as opposed to One year under the National Security Act , section 18 is violative of article 22(7) of the Constitution of India and hence need to be struck down.


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