Jammu & Kashmir High Court
Mustafa Mh vs The Union Territory Of Jammu And Kashmir on 22 October, 2024
Bench: Chief Justice, Puneet Gupta
Sr. No.04
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through Virtual Mode)
WP(C)PIL 2/2021
CM(1565/2021)
CM(1566/2021)
Mustafa MH, Age 31 Years, S/o Mohd Habib R/o
Murad Bagh Drass, Kargil, Ladakh. ...Petitioner(s).
Through: None.
Vs.
1. The Union Territory of Jammu and Kashmir
through its Secretary to Government, Law Secretary,
Department of Legal Affairs, Miistryof Law and
Justice, Civil Secretariat, Jammu.
2. The Chief Secretary, Government of Jammu &
Kashmir, Civil Secretariat, Jammu.
3. The Secretary to Government of J&K,
Department of Law, Justice and Parliamentary
Affairs, Civil Secretariat, Jammu. ....Respondent(s)
Through: Mr. S. S. Nanda, Sr. AAG.
Ms. Monika Kohli, Sr. AAG.
Mr. Mohsin S. Qadri, Sr. AAG.
Mr. Fahim Nissar Shah, GA.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
22.10.2024
01. The present Public Interest Litigation has been filed seeking
declaration 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.
02. Respondents have filed their objections.
03. Heard learned counsel for the respondents.
04. Article 22(7) of the Constitution provides that Parliament may by
law prescribe the circumstances under which a person may be detained for
a period longer than three months under any law providing for preventive
detention. The same issue was dealt with by the Hon'ble Supreme Court
in the judgment reported as AIR 1974 SC 613: Fagu Shaw v. State of
West Bengal, wherein it has been held as under:
"Parliament is under a duty to prescribe the maximum period
of detention the majority court held that there was no provision
which either expressly or by necessary implication compelled
Parliament to prescribe the maximum period of detention.
Mathew, J., pointed out that under entry 3, list III of 7th
Schedule both Parliament and State Legislatures had plenary
power to pass laws for preventive detention with respect to
subjects mentioned therein and ancillary to the power,
Parliament and State Legislatures had power to fix the period
of detention also. On this plenary power there was a curb in
article 22(4)(a) that no law could authorize the detention of a
person for a period exceeding three months unless an advisory
board had reported within the period of three months that there
was sufficient cause for detention. So far as the proviso to
article 22(4)(a) is concerned the court took the view that the
proviso merely enabled Parliament to put a curb on that power
by prescribing the maximum period of detention under article
22(7)(b) and, thus, it was open to Parliament to impose such
curb or not to impose the same. So neither did the proviso
impose nor did article 22(7) impose any condition precedent to
fix the maximum period."
05. This Court also has dismissed the identical petitions bearing OWP
No.2250/2018 and WP(C) PIL No.20/2019 questioning the provisions of
the Jammu and Kashmir Public Safety Act, on the ground the persons
who have been detained under the provisions of the said Act have already
approached this Court through the medium of separate petitions
questioning their respective detention orders and the effected persons
against whom the detention orders are being passed under the provisions
of the Jammu & Kashmir Public Safety Act, are approaching this court,
therefore, the present Public Interest Litigation is not maintainable and the
same is accordingly, closed.
(PUNEET GUPTA) (TASHI RABSTAN)
JUDGE CHIEF JUSTICE
Srinagar
22.10.2024
Abdul Qayoom, Secy.
