Amendment To PSA Law on HC Radar

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SRINAGAR — The Jammu and Kashmir High Court on Monday ordered authorities to ensure information regarding shifting of detainees to outside jails is provided to their family members  even as government sough short adjournment of two weeks in order to enable it file counter affidavit to a PIL in which challenge has been made to amendment in J&K PSA, allowing shifting of detainees to jails outside the state.       

“The respondents shall ensure that they enable interaction of the (detainees) with their family members. In case physical interaction for any reason is not possible, the respodnets shall take steps so that they enable the family members of the (detainees) to interact with them through video conferencing,” a division bench of the court said. “in case telephonic communication as per rules of the jails would also be enabled, the court said, adding that health and nutritional requirements of the detainees shall also be provided strictly as per the rules.   

The petition has been filed by Kashmir High Court Bar Association and said that it was more concerning that jail authorities were not providing the whereabouts of those detainees to their kith and kin, so that they could go and meet them in the jail, where they have been lodged.

The Bar Association maintains that shifting of Kashmiri detainees to the jails located outside the State, by making an amendment in Public Safety Act was an extra-territorial piece of legislation, “which is legally invalid.”

 The amendment was also contrary to the five Judge Bench Constitutional Judgment of the Supreme Court, besides Prisons Act, Prisoners Act and Jail Manual, the lawyers’ body said.

The Bar Association had had filed a writ petition before the High Court for quashing the amendment in which court had issued notice and referred the matter to PIL.

The lawyers’ body said in terms of Section 10 of the PSA, as it originally stood, any person in respect of whom a detention order has been made, was liable to be detained in such place and under  such  conditions,  including  conditions  as  to  the  maintenance  of  discipline  and  punishment  for  breaches  of  discipline,  as  the  government may  by  general   or  special  order  specify and  to  be removed  from one place of detention to another place of detention in the State, by order of the Govt.

On 26 May 1986, when Governor’s Rule was imposed in the State and Jagmohan was appointed as the Governor of the State, he immediately after taking over passed Act no. 11 of 1986, known as J&K Public Safety (Amendment) Act, 1986. In terms of Section 2 of the Act, he amended Section 10 of the Principal Act, whereby the words “in the State” in Clause(b) of Section 10 of J&K PSA were omitted.

The amendment to Section 10(b) of the Principal Act of 1978 lapsed after the period of two years as provided in Section 92(4) of the Constitution of J&K and thus the position as it existed prior to the passing of the Amendment Act of 1986 got revived and the powers of the Government to regulate the place of detention was once again limited to the territories of the State of J&K, Bar said.

On 19th of January, 1990, the State of J&K was again placed under the Governor’s Rule and Jagmohan was again appointed Governor of J&K State.

After his taking over as the Governor of J&K State, he passed PSA Act 1990 (Governor’s Act No. 1 of 1990 [04th February, 1990]), whereunder, he again amended Section 10 of the Act of 1978 and in clause(b) of Section 10 of the J&K PSA, 1978, the words “in the State” were omitted.  

On 10 March 1990, it was challenged by the Association before the Court at Srinagar and a Division Bench on 4 April 1990, directed the State that the persons detained under the J&K PSA be not lodged outside the State of J&K.

The State was placed under the Governor’s Rule on in June and immediately the Governor passed the J&K Public Safety (Amendment) Act 2018 (Governor’s Act No. III of 2018) whereunder, PSA has again been amended and the proviso added to Section 10(b) of the PSA in the year 2002 has been omitted.

“It is thus obvious that the respondents have exercised the power of amending Section 10(b) of the PSA from time to time, on malafide and extraneous considerations and for achieving an oblique motive of punishing the detenues belonging to the State, rendering the same liable to be set aside,” the lawyers’ body added.

 

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