Jammu & Kashmir High Court - Srinagar Bench
Syed Tassadque Hussain vs Union Of India on 9 October, 2024
Author: Chief Justice
Bench: Chief Justice
Sr. No. 09
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(Through Virtual Mode)
WP(C)PIL No.20/2019
CM No.6672/2019
Syed Tassadque Hussain
S/o Late Syed Nazir Ahmed
R/o Nageen, Srinagar
Profession Senior Most Senior Advocate of J&K
High Court Srinagar, age 75 years
....Petitioner(s)/Appellant(s)
Through :- None.
V/s
1. Union of India
through Union Home Secretary
Shastri Bhawan New Delhi.
2. State of J&K
through Chief Secretary,
Jammu and Kashmir
C/o Civil Sectt. Srinagar. ....Respondent(s)
Through :- Mr. D.C. Raina, AG with
Mr. Bikramdeep Singh, Dy. AG; and
Mr. Faheem Nissar Shah, GA with
Ms. Maha Majeed, Assisting Counsel.
Mr. T.M. Shamsi, DSGI with
Ms. Rehana Qayoom, Advocate.
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
ORDER
09.10.2024
1. 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. 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.
2. The petitioner is a resident of Srinagar and by profession a Senior
Advocate, practicing in High Court of Jammu & Kashmir and Ladakh at
Srinagar Wing.
3. Objections to this Public Interest Litigation have been filed by the
respondents-Home Department wherein raising preliminary objection that this
petition is not maintainable because it does not meet the requisite conditions
for filing PIL. It is further contended 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 this Court. It is further submitted that the
relief sought is not permissible under law in view of authoritative
pronouncement of the Apex Court, reported in 1982 vol 1 SCC 271 titled A.K
Roy vs. Union of India. It is apt to reproduce paragraphs 50 and 51 hereunder
for facility of reference.
"..........It, therefore, becomes necessary to leave to the
judgment of an outside agency the question as to when the
law should be brought into force and to which areas it
should be extended from time to time. What is permissible
to the Legislature by way of conditional legislation cannot
be considered impermissible to the Parliament when, in
the exercise of its constituent power, it takes the view that
the question as regards the time of enforcement of a
Constitutional amendment should be left to the judgment
of the executive. We are, therefore, of the opinion
that section 1(2) of the 44th Amendment Act is not ultra
vires the power of amendment conferred upon the
Parliament by Article 368 (1) of the Constitution.
..........We may now take up for consideration the
question which was put in the forefront by Dr. Ghatate,
namely, that since the Central Government has failed to
exercise its power within a reasonable time, we should
issue a mandamus calling upon it to discharge its duty
without any further delay. Our decision on this question
should not be construed as putting a seal of approval on
the delay caused by the Central Government in bringing
the provisions of section 3 of the 44th Amendment Act into
force. That Amendment received the assent of the
President on April 30, 1979 and more than two and half
years have already gone by without the Central
Government issuing a notification for bringing section
3 of the Act into force. But we find ourselves unable to
intervene in a matter of this nature by issuing a
mandamus to the Central Government obligating it to
bring the provisions of section 3 into force. The
Parliament having left to the unfettered judgment of the
Central Government the question as regards the time for
bringing the provisions of the 44 Amendment into force, it
is not for the Court to compel the Government to do that
which, according to the mandate of the Parliament, lies in
its discretion to do when it considers it opportune to do it.
The executive is responsible to the parliament and if the
Parliament considers that the executive has betrayed its
trust by not bringing any provision of the Amendment into
force, it can censure the executive. It would be quite
anomalous that the inaction of the executive should have
the approval of the Parliament and yet we should show
our disapproval of it by issuing a mandamus."
4. The petitioner has stated in this PIL that about 2000 people have
been detained and 253 habeas corpus petitions after the lockdown have been
filed by the affected persons.
5. Mr. D.C Raina, learned Advocate General has vehemently argued
that as the persons who are detained under the Public Safety Act have already
approached this Court by filing habeas corpus petitions questioning therein
their detention orders, which fact is also admitted by the petitioner, therefore,
the issue raised in this PIL cannot be considered as it would tantamount to
double adjudication on the same issue.
6. 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.
7. In view of the preceding analysis, this Public Interest Litigation is,
accordingly, rejected 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.
( (MA Chowdhary) ) (Tashi Rabstan)
Judge Chief Justice
Srinagar:
09.10.2024
Surinder
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
