Substituting 'State' With 'Union Territory' In Public Safety Act Does Not Alter Nature Of Law: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh has held that the adaptation of the Jammu & Kashmir Public Safety Act, 1978 after the enactment of the Jammu & Kashmir Reorganisation Act, 2019 was carried out strictly within the statutory authority conferred by Parliament and does not suffer from any constitutional infirmity.The Court dismissed a habeas corpus petition challenging a preventive detention order, ruling that the substitution of the expression “security of the State” with “security of the Union Territory” through S.O. 1229(E) dated 31.03.2020 was a valid consequential change authorised by Section 96 of the Reorganisation Act.The Court was hearing a habeas corpus petition filed by a detenu through his wife. The detenu was alleged to be an active Over Ground Worker affiliated with banned terrorist outfit Lashkar-e-Toiba, providing logistical support, shelter and transportation to terrorists, and maintaining contact with Pakistan-based handlers through encrypted communication applications.A Bench of Justice Wasim Sadiq Nargal, while rejecting the challenge to the validity of the adapted provisions of the PSA, observed, “... The adaptation of the Jammu & Kashmir Public Safety Act, 1978 was carried out strictly within the four corners of the statutory authority conferred by Parliament under the Jammu & Kashmir Reorganisation Act, 2019 and does not suffer from any infirmity.”The Court held that the continuance of the PSA after reorganisation does not arise from any executive action but directly from the Parliamentary mandate embodied in the Reorganisation Act itself.The petitioner had challenged the detention order on multiple grounds, including that the PSA could not have been adapted after the enactment of the Jammu & Kashmir Reorganisation Act, 2019. It was argued that the expression “security of the State” could not have been substituted with “security of the Union Territory” except by Parliamentary legislation, and that the Lieutenant Governor was not competent to amend or modify the PSA. The petitioner also contended that the approval under Section 8(4) was not issued in conformity with Rule 33 of the Transaction of Government Business Rules and was not expressed in the name of the President.The respondents contended that Sections 95 and 96 of the Reorganisation Act expressly preserved the applicability of laws mentioned in the Fifth Schedule and conferred power upon the Central Government to make adaptations. It was argued that S.O. 1229(E) dated 31.03.2020 was validly issued, that all constitutional safeguards were complied with, and that the detenue had in fact submitted a representation which was duly considered and rejected.Court's Observation:The Court first examined the constitutional validity of the adaptation of the PSA. It noted that Sections 95 and 96 of the Jammu & Kashmir Reorganisation Act, 2019 provided a complete statutory mechanism for the continuation and adaptation of existing laws. Justice Nargal explained that Section 95 preserved the operation of laws enumerated in the Fifth Schedule, while Section 96 expressly authorised the Central Government to make adaptations and modifications, including by way of repeal or amendment, for the purpose of facilitating their application to the successor Union Territories.The Court observed, “... It is in exercise of this statutory authority that S.O. 1229(E) dated 31.03.2020 came to be issued, whereby references to 'State' in the Public Safety Act were substituted with 'Union Territory of Jammu & Kashmir'. 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.”The Court held that 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 further found that the adaptation did not change the basic nature, object or policy of the PSA. “The replacement of the word 'State' with 'Union Territory' is only a consequential change made because of the reorganization of 2019. The purpose and operation of the law remain the same,” the Court stated.On the challenge to the approval under Section 8(4) of the PSA and alleged violation of Rule 33 of the Transaction of Government Business Rules, the Court held that the approval order was issued “By order of the Government of Jammu & Kashmir” and that no prejudice was shown to have been caused to the detenue. The Court observed, “It is well settled that procedural provisions regulating internal governmental functioning cannot be interpreted in a hyper-technical manner so as to defeat substantive action validly taken under a statutory enactment, particularly in matters concerning preventive detention and security of the Union Territory.”Examining the allegation that the grounds of detention were a verbatim reproduction of the police dossier and other...

Substituting 'State' With 'Union Territory' In Public Safety Act Does Not Alter Nature Of Law: J&K&L High Court

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Substituting 'State' With 'Union Territory' In Public Safety Act Does Not Alter Nature Of Law: J&K&L High Court

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