Submit report about legal aid to  PSA detainees: HC to member secy legal services authority

SRINAGAR: The J&K High Court on Monday directed member secretary of J&K Legal Services Authority to submit a compliance report about legal assistance being provided to people arrested under public safety Act, failing which he should appear in person.
The direction was passed after senior advocate Syed Tassadque Hussain submitted before the court that no legal aid has been provided to those detainees who cannot afford a lawyer. As such many people are languishing behind bars as no legal aid is being given to them.
The division bench of Justice Ali Mohammad Magrey and Justice Dhiraj Singh Thakur while hearing the litigation about striking down of Public Safety Act, 1978 for being violative of the Article 21 of the Constitution directed member secretary Legal Service Authority to file compliance report and explain the position about providing legal aid to detenues.
Meanwhile Advocate General, DC Raina who was present before the court sought time to argue the matter on its maintainability.
Earlier, the Advocate General had informed the court that under Article 35 C, the PIL was not maintainable but counsel Syed Tassadque Hussain had made a submission that he wants to argue the matter on maintainability of the litigation.
“If the amendments made to Article 22 of the Constitution has been brought into force, then the entire J&K public Safety Act, 1978 will have to be struck down and if this amendment has not been brought into force then the High Court may issue a mandamus directing Union of India to bring into force this important amendment,” he submitted.
Amendment of Article 22 of the Indian Constitution meant that no law providing for preventive detention shall authorise the detention of a person for a longer period than two months unless an advisory board constituted in accordance with the recommendations of the Chief Justice High Court has reported before the end of two months.
It also states that an advisory board shall consist of a chairman and not less than two other members. The chairman shall be a serving judge of the concerned High Court and other members shall be serving or retired judges of any high court.
The counsel argued in the petition that since the will of the parliament cannot be defied for an indefinite time as the government of India did not bring an amendment into force for four long decades. It shows that the government has no intention of complying with the will of the Parliament, it said.
“Thus whosoever has been detained into this act has been detained illegally,” it added.
It was also submitted that even otherwise section 8 of the J&K Public Safety Act, 1978 is totally illegal as the Divisional Commissioners or District Magistrates have been granted power to detain a person.
The litigation pointed out that under the power to detain a person has to be exercised by the government as detention of a person is a sovereign function of the state under the Government of India Act, 1935. And no sovereign function can be delegated to a Divisional Commissioner or any district Magistrate in Jammu and Kashmir, it said.

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