"State" under J&K Public Safety Act includes UT of J&K: Jammu and Kashmir High Court
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The High Court of Jammu and Kashmir and Ladakh recently clarified that the term "State" under the Jammu and Kashmir Public Safety Act, 1978 (PSA) includes the Union Territory of Jammu and Kashmir [Yawar Ahmad Malik V/s Union Territory of J&K].
The Court, therefore, dismissed an argument that a person could no longer be put in preventive detention under the PSA by citing acts prejudicial to the security of the "State" of Jammu and Kashmir because Jammu and Kashmir has been "Union Territory" since 2019.
"There is no doubt that the definition of State as contained in Section 3 (58) of General Clauses Act, 1898 includes Union Territory. The term, 'all local or other authorities within the territory of India or under the control of Government of India' comprises State and Union Territories. The term State includes the Government of each State, that is the State Executive and legislature of each State, that is the State legislature. It is pertinent to mention that it includes Union Territories as well," the July 3 judgment stated.
The ruling was passed by Chief Justice N Kotiswar Singh and Justice Moksha Khajuria Kazmi while dismissing a challenge to the preventive detention of one, Yawar Ahmad Malik, under the PSA.
A single judge of the High Court had earlier upheld the 2022 detention order against Malik. This single judge ruling was challenged by Malik (through his father) by way of an appeal.
On July 3, the Division Bench of the High Court dismissed the appeal and upheld the single judge's decision.
"The grounds of detention formulated by the detaining authority and the record supplied by the respondents does not suffer from and legal infirmity. The detention order appears to be on sound logic for the reason that the detaining authority, before passing the order, has applied its mind to draw subjective satisfaction to order preventive detention of the detenue by curtailing his liberty," the Court found.
Notably, one of the grounds on which Malik had challenged the detention order was that there was no application of mind by the detaining authority.
His counsel pointed out that the detaining authority had accused Malik of carrying out activities prejudicial to the security of "the State", rather than the "Union Territory" of Jammu and Kashmir.
The lawyer contended that after the introduction of the Jammu and Kashmir Re-Organisation Act of 2019 (which followed the abrogation of Article 370 of the Constitution), Jammu and Kashmir was no longer a State and was converted into two Union Territories (Jammu and Kashmir, and Ladakh).
The argument, however, failed to impress the High Court which held that the term "State", in this context, would include Union Territories, going by the definition of "State" in the General Clauses Act, 1897.
The Court proceeded to dismiss the appeal after finding no infirmity in the detention order.
Advocates Asif Ahmad Dar, GN Shaheen represented the appellant.
Deputy Advocate General Muneeb Wani and advocate Nowbahar Khan represented the Jammu and Kashmir authorities.