The petition put forward by the advocate, Mustafa MH, charged that, since the repeal of Article 370 of the Constitution, Section 18 had been impaired by Article 22(7) of the Constitution, which had not previously been applicable to J&K.
A petition for public interest litigation (PIL) was lodged before the Jammu & Kashmir High Court questioning the constitutional validity of Section 18 of the 1978 Jammu & Kashmir Public Protection Act, which provides for the maximum duration of preventive detention permitted under the Act (Mustafa MH v. Union Territory of Jammu & Kashmir).
The petition put forward by the advocate, Mustafa MH, charged that, since the repeal of Article 370 of the Constitution, Section 18 had been impaired by Article 22(7) of the Constitution, which had not previously been applicable to J&K.
“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 petition said.
After hearing the petitioner’s lawyer, Zulker Nain Sheikh & Associates, the Bench of Justices Dhiraj Singh Thakur and Javed Iqbal Wani sought the Union Territory of J&K’s response to the appeal.
On behalf of the respondents, Advocate General DC Raina accepted the note.
Section 18 of the Act respecting public protection reads as follows:
“Maximum detention time.
1. The maximum time for any person to be detained in connection with any order of detention that has been confirmed in accordance with section 17 shall be—
a. 12 months from the date of arrest for persons behaving in some way prejudicial to the preservation of public order or to the smuggling of timber; and
b. In the case of people behaving in any way prejudicial to the welfare of the State, two years from the date of arrest.
2. Nothing found in this provision shall impact the rights of the Executive, at any earlier time, to cancel or change the custody order or to prolong the duration of detention of an alien if it has not been practicable to deport him from the State.’
Article 22(7) states that parliament can, by statute, prescribe the situations under which, and the type or classes of cases in which, under any legislation providing for preventive detention, a person may be detained for a period longer than three months without obtaining the opinion of the Advisory Board.
It also states that, by statute, Parliament can prescribe the maximum time during which any person may be detained in any type or class of cases under any law providing for preventive detention.
It is the petitioner’s argument that, after the special status of Jammu and Kashmir was revoked and Article 370 suspended, the residual rights of the State of Jammu and Kashmir are no longer the same with regard to the law on preventive detention.
Accordingly, the petition alleges that Entry 9 of the Union List and Entry 3 of the Concurrent List of the Constitution of India are now applicable to J&K. Accordingly, Section 18 of the 1978 Public Safety Act, which was formerly exempt from the implementation of Article 22(7), will no longer remain the same and, as Article 22(7) now extends to the Union Territory of Jammu and Kashmir, Section 18 of the Jammu and Kashmir Public Safety Act is in violation of Article 22 of the Constitution of India.
This is because Parliament’s legislation under Article 22(7) allows for a cumulative sentence of 1 year under the National Security Act, and that law overrides the Public Safety Act.
‘The Parliament shall decide on the maximum time of imprisonment according to Article 22(7) of the Constitution and, as the National Security Act of 1980 is also the rule of Parliament, the maximum penalty as defined by the National Security Act should be taken as the maximum punishment in preventive detention,’ the petition says.
Section 18 of the Jammu and Kashmir Public Protection Act 1978, which allows for a maximum sentence of two years as opposed to one year under the National Security Act, thus contradicts Section 18 of Article 22(7) of the Indian Constitution and must therefore be struck down, the petitioner prayed.
