The Jammu and Kashmir High Court has issued notice to the UT administration on a PIL challenging the constitutional validity of Section 18 of the Public Safety Act, 1978.
The provision prescribes that a person, acting in a manner prejudicial to the maintenance of public order, may be detained under the Act for a maximum period of twelve months and a person, acting in a manner prejudicial to the security of the State may be detained under the Act for a maximum period of two years.
A Division Bench comprising of Justices Dhiraj Singh Thakur and Javed Iqbal Wani issued notice on the petition after hearing Zulker Nain Sheikh & Associates on behalf of Petitioner-Advocate Mustafa MH.
In his plea, Mustafa has contended that the impugned provision is violative of Article 22 (7) of the Constitution of India, which provides that the maximum period of preventive detention shall not exceed three months, without obtaining the opinion of an Advisory Board.
Article 22(7) further 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.
It is the case of the Petitioner that until 5th August 2019, Jammu and Kashmir enjoyed a special status and Article 35C of the Constitution exempted its Preventive Detention Act from the operation of the Fundamental Rights.
However, ever since abrogation of Article 370 with the passing of the J&K Reorganization Act, 2019, many laws of the Centre including Article 22 (7) of the Constitution have been made applicable to Jammu and Kashmir.
The plea states,
"since the special status of Jammu and Kashmir has been done away with and Article 370 has been suspended the residuary powers of the state of Jammu and Kashmir with respect to the preventive detention laws will also no longer remain the same. Entry 9 of the Union List and Entry 3 of the Concurrent List of the Constitution of India shall now be applicable to the state of Jammu and Kashmir. Therefore Section 18 of the Public Safety Act of 1978 which was earlier saved from the applicability 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 the Jammu and Kashmir Public Safety Act shall be violative of Article 22 of the Constitution of India."
The Petitioner further pointed out that the National Security Act of 1980, which prescribes a maximum detention period of one year (as opposed to two years in J&K PSA) has also been made applicable to Jammu and Kashmir and hence, there is a direct conflict between the two Acts.
The plea states,
"since the "maximum" Punishment for the Preventive Detention as per Article 22 (7) of the Constitution shall be decided by the Parliament and since further the National Security Act of 1980 is the law made by the Parliament, the maximum punishment as decided by the National Security Act should be taken as the position with regard to the Maximum Punishment in Preventive Detention. And therefore Section 18 of the Jammu and Kashmir Public Safety Act 1978 which prescribes a 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."
The Petitioner has therefore urged the High Court to declare Section 18 of the Public Safety Act as null and void, inoperative being ultra vires to the Constitution of India and in violation of Article 22 (7) of the Constitution.