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A PIL filed in the Jammu and Kashmir High Court has challenged the constitutional validity of Section 18 of the Jammu and Kashmir Public Safety Act of 1978 which prescribes the maximum period for preventive detention allowed under the Act. The plea states, “The maximum period of punishment in the preventive detention cases should be as per Article 22 (7) of the Constitution of India. Section 18 of the Public Safety Act 1978 is violative of Article 22 (7) of the Constitution of India.”
The PIL has been filed by lawyer Mustafa MH through counsel Zulker Nain Sheikh and Associates. According to the petition, after the abrogation of Article 370 of the Constitution, Section 18 is impacted by Article 22 (7) of the Constitution which did not apply to Jammu and Kashmir earlier.
Since the special status of Jammu and Kashmir was done away with, the powers of Jammu and Kashmir with respect to the preventive detention law will also no longer remain the same, Entry 9 of the Union List and Entry 3 of the Concurrent List of the Constitution of India shall now be applicable to J&K, stated the PIL.
It was alleged Section 18 of the Public Safety Act of 1978 which was earlier saved from the applicability of Article 22 (7) will no longer remain the same and due to the applicability of Article 22 (7) now to the Union Territory of Jammu and Kashmir, Section 18 of the Jammu and Kashmir Public Safety Act shall be violative of Article 22 of the Constitution of India.
On the light of the fact that the law made by Parliament as per Article 22(7), the National Security Act provides for a maximum punishment of 1 year and the said law overrides the Public Safety Act , the petitioner has prayed that Section 18 of the Jammu and Kashmir Public Safety Act 1978 which prescribes a maximum punishment of two years as opposed to one year under the National Security Act, Section 18 is violative of Article 22 (7) of the Constitution of India and hence need to be struck down.
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The Division Bench of Justices Dhiraj Singh Thakur and Javed Iqbal Wani, after hearing the petitioner, have sought the response of the Union Territory of Jammu and Kashmir.