SRINAGAR: J&K High Court Bar Association (JKHCBA), Srinagar, has expressed serious concern over the clearing of a proposal by State Administrative Council (SAC) regarding the deletion of the provision, which was added to Section 10(b) of the Public Safety Act (PSA), in 2002 and provided that the detenues who are permanent residents of the state, shall not be lodged in jails outside Jammu and Kashmir.
In a statement, the Bar Association described the proposal as politically motivated and termed it as “an act to terrorise, torture and humiliate the freedom loving people of Kashmir by threatening them to get them lodged in jails outside the state after the arrest and detention under the preventive law, if they persist with their demand of seeking right of self-determination, as guaranteed by the Security Council Resolutions and the pledges and promises made by the Indian leaders to them both inside and outside the Parliament”.
The Bar Association maintains that it was actually in 1990, when Jagmohan, took over as Governor of Jammu & Kashmir that he inserted a provision in the Public Safety Act, wherein anyone detained under the provisions of Public Safety Act, could be lodged in any jail outside the state.
“The provision was challenged by the Bar Association before a Division Bench of the High Court which stayed the same. Jagmohan, however got the order of the High Court stayed from the Supreme Court, which paved way for arresting and detaining the freedom loving people of Kashmir on flimsy grounds under the draconian Public Safety Act and their lodging in far flung jails of India, which included the jails located in Coimbatore (Tamil Nadu), Jodhpur (Rajasthan), Varanasi, Allahabad, Agra (UP) Sangrur, (Punjab), Nihan (Himachal Pradesh) and Delhi, etc.”
“He even denied them the right of being supplied with the grounds of detention, which disabled the detenues lodged in those far flung jails of India to challenge their orders of detention before the High Court. It was however in 2002, that a proviso was added to Section 10(b) of the Public Safety Act, wherein the permanent residents of the state detained under Public Safety Act were directed not to be lodged in jails outside the state.”
Bar said the present governor regime has however repeated what was done by Jagmohan in 1990 and the State Administrative Council in its meeting held on 11 July 2018 has cleared a proposal and recommended the deletion of the proviso added to Section 10(b) paving way for detaining authorities which include District Magistrates, Divisional Commissioners and the government itself, to arrest and detain any person and lodge him in any jail in India so as to make the meeting of their friends, relatives and family members impossible with them.
This, besides being a flagrant violation of the fundamental and legal rights of the permanent residents of the J&K State, is also in derogation to the five judge constitutional bench decision of the Supreme Court of India rendered in case titled A.K. Roy v. Union of India (AIR 1982 SC 710), Para 74 whereof reads as under: “It is neither fair nor just that a detenue should have to suffer detention in such place as the Govt. may specify. The normal rule has to be that the detenue will be kept in detention in a place which is within the environs of his or her ordinary place of residence. Besides keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or to claim the advantage of facilities like having his own food. The requirements of administrative convenience, safety and security may justify in a given case the transfer of a detenue to a place other than that where he ordinarily resides but that can only be by way of an exception and not as a matter of general rule……”
“The proposal cleared by the State Administrative Council to delete proviso to Section 10(b), viewed in the aforesaid context makes it clear that it is an affront to the Supreme Court directive and besides being malafide and colorable in nature is also contemptuous requiring a so-mottu cognisance of the matter being taken by the High court as well as by the Supreme Court,” Bar Association said.