Jammu and Kashmir High Court on Monday said that it will decide next month sans any adjournment issue regarding maintainability of a Public Interest Litigation as regards legal aid to a detainee booked under Public Safety Act.
“Issue regarding the maintainability of the petition is to be gone into as per the earlier orders passed by this Court but because of the non-availability of Advocate General could not be considered,” a bench of Justices Ali Mohammad Magrey and Vinod Chatterji Koul said.
The court asked the senior additional advocate general B A Dar to ensure the appearance of the
Advocate general on the next date of hearing, on March 5.
The court has directed the member State Legal Service Authority (SLSA) and Ladakh Legal Service Authority to update compliance reportsregarding the legal aid to the PSA detainees.
In a Public Interest Litigation petition filed last year, Advocate Syed Tassaduq Hussain has raised the issue of legal aid and according to him the state is bound to provide it to a detainee booked under PSA.
“Where the state detains a person under PSA, it has a duty under article 22 of the constitution read with articles 20 and 21 to provide legal aid to the detenue,” the senior advocate says.
The PIL challenges the “legality” of the PSA and seeks its scraping. “PSA is illegal because it contravenes 44th (1979) amendment to the constitution of India. Union of India was bound to bring this amendment into force,” the PIL highlights.
While the PIL points out that for last 46 years amendment to Article 22 has not been brought into force, it seeks direction from the court to the Union of India for bringing into force the same.
“Section 8 of the PSA should be declared illegal because the government has to approve the detention but it cannot approve without hearing the detenue,” the petitioner pleads.
Underscoring that “power to detain is power of the state” the petition says that a “divisional commissioner or district magistrate cannot detain a person”.
Moreover the senior lawyer submits that the detainee cannot be moved from one place of detention without show cause. The petitioner is relying on a judgment of the House of Lords in England which, he submits, still holds good. Earlier, the advocate general had raised a preliminary objection on the maintainability of the petition. (GNS)