HC upholds adaptation of JKPSA post Reorganisation Act 2019

Srinagar, May 15: The High Court of J&K and Ladakh has upheld the constitutional validity of the adaptation of the Jammu & Kashmir Public Safety Act (JKPSA) 1978 after the enactment of the Jammu and Kashmir Reorganisation Act 2019.

A bench of justice Wasim Sadiq Nargal upheld the adaptation validity of JKPSA while dealing with a plea wherein it was argued that the Act of 1978 was originally enacted under the constitutional framework applicable to the erstwhile State of Jammu & Kashmir and, therefore, after enactment of the Jammu & Kashmir Reorganization Act, 2019, the expression “Security of the State” could not have been substituted with “Security of the Union Territory” except by Parliamentary legislation.

While disagreeing with this contention, the Court noted that Sections 95 and 96 of the Reorganisation Act expressly empowered continuation and adaptation of pre-existing laws applicable to the erstwhile State of Jammu and Kashmir.

The Court held that the continuance of the JKPSA after reorganisation does not arise from any executive action but directly from Parliamentary mandate embodied in the Reorganisation Act itself.

“A careful reading of Sections 95 and 96 of the Jammu & Kashmir Reorganisation Act, 2019 makes it abundantly clear that Parliament itself, while enacting the Reorganisation Act, consciously provided a complete statutory mechanism not only for continuation of the existing laws applicable to the erstwhile State of Jammu & Kashmir, but also for their adaptation and modification so as to facilitate their applicability to the successor Union Territories,” the court said.

The substitution of the expression “State” with “Union Territory of Jammu & Kashmir” was carried out within the statutory authority delegated by Parliament itself, the court said while referring to S.O. 1229(E) dated March 31, 2020.

The court noted that “the argument that only Parliament could carry out such substitution overlooks the fact that Parliament itself, by virtue of Section 96 of the Reorganisation Act, delegated such limited power of adaptation to the Central Government. “Once the parent law itself gives such power, the action taken under it cannot be said to be outside the statute or unconstitutional.”

The court underscored that the adaptation does not change the basic nature, object or policy of the Jammu & Kashmir Public Safety Act, 1978. The replacement of the word “State” with “Union Territory” is only a consequential change made because of the reorganization of 2019, it said.

“The purpose and operation of the law remain the same.”

The court pointed out that accepting the petitioner’s contention would undermine the entire adaptation mechanism contemplated under the Reorganisation Act and render all such statutory modifications vulnerable. The adaptation of the Public Safety Act, it said, was valid and did not suffer from any constitutional or legal infirmity, dismissing the challenge as devoid of merit.

“Accordingly, the challenge laid by the petitioner to the constitutional validity of the provisions of the Public Safety Act is devoid of any merit and therefore, rejected,” the court said.

The court was hearing a habeas corpus plea against detention order under PSA passed by District Magistrate, Baramulla against Tanveer Ahmad Mir of Bomai Zaingeer.

 The petitioner’s challenge through his counsel was regarding the validity of the adapted provisions of the Jammu & Kashmir Public Safety Act, alleged violation of Rule 33 of the Transaction of Government Business Rules, non-application of mind, non-supply of material and lack of relevant material for detention.

The Counsel submitted that the approval granted by the Government to the detention order was legally unsustainable as the same was allegedly not issued in accordance with the Transaction of Government Business Rules and was not issued in the name of the President.

Aman Hussain counsel appearing for the government submitted that the challenge to constitutional validity of adaptation was wholly misconceived and contrary to the statutory scheme of the Jammu & Kashmir Reorganization Act, 2019. The court ultimately dismissed the petition.