HC dismisses PIL questioning legality of PSA  

Srinagar, Oct 17: The High Court of J&K and Ladakh has dismissed as “not maintainable” a Public Interest Litigation in which among others legality of detention orders passed by either Divisional Commissioner or Deputy Commissioners was called into question.  
The petitioner, a practicing lawyer of the High Court, had contended in the PIL, filed in 2019, that the amendment effected in Article 22 of the Constitution of India has not been brought into force in Jammu and Kashmir and that the delegation of powers to detain the persons under Sections 8 and 16 of the Jammu and Kashmir Public Safety Act, 1978 in Divisional Commissioners or District Magistrates was “illegal”, underscoring that such power lies with the “State”.

 “Instant Public Interest Litigation has been filed by the petitioner invoking jurisdiction of this Court in view of the fact that about 2000 people have been detained and 253 habeas corpus petitions post lockdown have been filed,” a division bench of Chief Justice Tashi Rabstan and  Justice M A Chowdhary said, adding, “Amongst other reliefs sought by the petitioner, the star relief is for direction to the Union of India to bring into force the amendments made to Article 22 of the Constitution of India.”
The Division Bench observed that Home Department in its preliminary objection has contended that the PIL was not maintainable because it does not meet the requisite conditions for filing PIL and that the relief sought by the petitioner, even otherwise cannot be allowed either on the touch stone of law holding the field or under the PIL jurisdiction of the Court. It is further submitted that the relief sought is not permissible under law in view of authoritative pronouncement of the Apex Court in case of A.K Roy vs. Union of India, reported in 1982.
While the petitioner has stated in the PIL that about 2000 people have been detained and 253 habeas corpus petitions have been filed post lockdown, the Division Bench noted arguments by
D.C Raina, Advocate General, who vehemently argued that as the persons who are detained under the Public Safety Act have already approached the Court by filing habeas corpus petitions questioning therein their detention orders and that the issue raised in the cannot be considered as it would tantamount to double adjudication on the same issue.
“Since the issue of detention of citizens as raised in this petition is already pending adjudication before this Court, therefore, in our considered opinion, this PIL is not maintainable as being a parallel litigation,” the Division Bench said and accordingly rejected the PIL being not maintainable. “However, the leftover persons who have not challenged the detention orders passed against them under the Jammu and Kashmir Public Safety Act shall be at liberty to question the same,” the court added.