A public interest litigation (PIL) petition has been filed before the Jammu & Kashmir High Court challenging the constitutional validity of Section 18 of Jammu & Kashmir Public Safety Act of 1978 which prescribes the maximum period of preventive detention allowed under the Act (Mustafa MH v. Union Territory of Jammu & Kashmir).
The plea by a lawyer, 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.
A Bench of Justices Dhiraj Singh Thakur and Javed Iqbal Wani sought the response of the Union Territory of J&K on the plea after hearing petitioner’s counsel Zulker Nain Sheikh & Associates.
Advocate General DC Raina accepted notice on behalf of the respondents.
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.
It is the petitioner’s case that since the special status of Jammu and Kashmir was done away with and Article 370 suspended, the residuary powers of the state of Jammu and 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 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, it has been 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.
“The maximum period of 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,” the petition states.
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 prayed.