NPP Supremo files writ petition in SC against J&K PSA, that is ultra virus

New Delhi, 13th February 2020. Prof.Bhim Singh, Chief Patron of J&K National Panthers Party and Executive Chairman of State Legal Aid Committee, J&K who is also a Sr. Advocate in the Supreme Court filed a writ petition in the Supreme Court (Dairy No. 5950, titled as Prof.Bhim Singh Vs. Union of India & Others.) challenging J&K Public Safety Act, 1978, which the President of India by demolishing Article 35-A had removed the PSA from the pages of Jammu and Kashmir Constitution. He has described PSA as dead and ultra virus. According to the writ petition filed by Prof.Bhim Singh this afternoon, more than 600 political activists have been detained for more than six months under the draconian and dead Law which had lost its existence the day President of India abrogated Article 35-A from Chapter-III of the Indian Constitution. Prof. Bhim Singh filed writ petition in-person this evening before the Hon’ble Supreme Court with the prayer that;

a).      issue appropriate order/direction declaring the J&K Public Safety Act, 1978 as invalid Law which was enacted by Jammu & Kashmir Legislature in 1978 by virtue of the exclusive jurisdiction of J&K under Article 35-A.

b).     issue an appropriate writ, order or direction to the respondents particularly the Union of India to direct the respondents namely, the Ministry of Home Affairs to release all the detenus who were detained on or before August 5, 2019 and who have completed more than three months in detention without trial in Union Territory of Jammu and Kashmir;

c).      direct the respondents to provide immediate medical relief/ medical care to all the detenus from Jammu and Kashmir lodged in prisons in J&K or outside the state or lodged in their private houses/government Guest Houses/Private Hotels in J&K with direction to the respondents to provide free legal aid and assistance to all detenus;

d).     direct the Union of India and the respondents to grant appropriate compensation to all the detenus who have completed six or more months in illegal detention in J&K/outside J&K under the detention order of J&K Public Safety Act, 1978, which had lost its existence as valid law;

e).      direct the respondents to allow any relative, a lawyer to meet any such detenus during their detention in state prisons or in private houses;

f).      direct the respondents to restore the statehood to J&K which was declared/established as a State of Jammu and Kashmir in 1846 by the founding Maharaja Gulab Singh and continued as recognized state till 2019;

g).      direct the respondents/Union of India to appoint Delimitation Commission in Jammu & Kashmir and hold fresh Assembly election in 2020 after delimitation of the constituencies in J&K so that confidence of the people in democracy, rule of law and Indian Constitution is not shaken by the enemies of peace and rule of law.  

          The contents of the writ petition filed this afternoon in the Supreme Court of India by Panthers Party Supremo is reproduced below:-

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) No……………..OF 2020

IN THE MATTER OF:

THE INSTANT WRIT PETITION IS BEING FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA IN PERSON FOR AN APPROPRIATE WRIT IN THE NATURE OF HABEAS CORPUS OR ANY OTHER APPROPRIATE WRIT OR ORDER CHALLENGING THE VIRES/VALIDITY OF J&K PUBLIC SAFETY ACT, 1978 AND FOR THE RELEASE OF J&K RESIDENTS WHO HAVE BEEN DETAINED IN J&K UNDER THE PROVISIONS OF SAID ACT AND FOR THE RELEASE OF ALL DETENUES DETAINED IN KASHMIR FOR MORE THAN THREE MONTHS, WHO AS PER THE REPORTS/NEWS ITEMS PUBLISHED IN VARIOUS DAILY NATIONAL NEWSPAPERS IN THEIR EDITION DATED 07.02.2020 ARE ABOUT 600 IN NUMBERS AND HAVE BEEN DETAINED UNDER THE PROVISIONS OF JAMMU AND KASHMIR PUBLIC SAFETY ACT, 1978.

 

AND IN THE MATTER OF:-

Prof. Bhim Singh

Chief Patron

Jammu and Kashmir National Panther Party

K-61, B.K. Dutt Colony, Karbala Lane,

New Delhi-110003                                                                          …Petitioner

VERSUS

1. Union of India

          Through Ministry of Home

Govt. of India

North Block, New Delhi

2. Government of Union Territory of J&K

          Through Chief Secretary

          Secretariat Srinagar, J&K

3. Director-General of Police

Union Territory of J&K

Police Headquarters,

Jammu Tawi (J&K)                                                       …Respondents

 

To

The Hon’ble Chief Justice of India

And his Companion Justices of the

Hon’ble Supreme Court of India.

The humble petition of the Petitioners above named

MOST RESPECTFULLY SHOWETH:

1. That the instant writ petition is being filed under Article 32 of the Constitution of India for an appropriate writ in the nature of habeas corpus or any other appropriate writ or order, on behalf of the detenues, who as per the reports/news items published in various Daily National newspapers in their edition dated 07.02.2020 are about 600 in numbers and have been detained under the provisions of Jammu and Kashmir Public Safety Act, 1978.

It seems that the aforesaid about 600 persons have been detained by the order of Jammu & Kashmir Government under the provision of Jammu and Kashmir Public Safety Act, 1978, without providing them copies of their detention orders. Most of the persons who have been detained are yet to be served with detention order and the grounds of detention. The said detention orders are in violation of Article 14, 21 and 22 of the Constitution of India being arbitrary and illegal.

2. That in the instant Writ Petition Petitioner besides challenging the constitutional validity of Jammu and Kashmir Public Safety Act, 1978, which has become redundant after the deletion of Article 35-A from the Constitution of India as the aforesaid Act was enacted in exercise of the power conferred under Article 35-A of the Constitution of India to the State Legislature. The provisions of the Jammu and Kashmir Public Safety Act, 1978 cannot be invoked to detain the residents of the Jammu and Kashmir merely to restrain them from raising their voice against the arbitrary acts of the Government of India. A copy of Jammu and Kashmir Public Safety Act, 1978 is enclosed herewith asANNEXURE P-1 [Page……….to………………]
3. That the misuse of the provisions of Jammu and Kashmir Public Safety Act, 1978, which is a redundant legislation and has lapsed after the deletion of Article 35A from the Constitution of India, inasmuch as it violates the spirit of Constitution, individual liberty, which is the soul of democratic Constitution, moreover the Government has shown no tangible evidence which suggest that the about 600 detenues were indulged in activities which were causing problems and threatening the peace and tranquility in the Jammu and Kashmir.
4. That the Petitioners before this Hon’ble Court is the Chief Pattern of J&K National Panther Party, which is a recognized political party in Jammu and Kashmir. Petitioner was elected MLA for two terms. The Petitioner was also MLC for one term. There are several other persons who are the members of J&K National Panther Party were also elected in Assembly Election held earlier and some of them have also held various responsible posts including Cabinet Ministers.
5. That the Chief Patron of J&K National Panther Party on 11.02.2020 passed a resolution in the General Body meeting authorizing the Petitioner to file the instant Writ Petition before this Hon’ble Court as several relatives and friends of the detenues approaches the members of Chief Patron of J&K National Panther Party to file the collective petition on behalf of the detenues as public interest litigation.

6. That the prominent detenues who have been detained for more than six months by the Lt. Governor’s administration in J&K include three former Chief Ministers of Jammu and Kashmir, former Legislators, former State Ministers namely;

i).       Dr. Farooq Abdullah, former 5 times Chief Minister of J&K, sitting Member of Parliament (Lok Sabha) & son of the first Prime Minister of J&K, Sheikh Mohd. Abdullah.

ii).      Mehbooba Mufti, first woman Chief Minister of J&K, former Member of Parliament & President of Peoples Democratic Party, a recognized political party in J&K.

iii).     Omar Abdullah, former Chief Minister of J&K, former Member of Lok Sabha & Union Minister of State.

iv).     Sajad Ghani Lone, President of J&K Peoples Conference & former State Minister in J&K.

v).     Mian Abdul Qayum, President, High Court Bar Association, Kashmir.

vi).     Syed Ali Shah Geelani, former 3 times Member of J&K Legislative Assembly in 1972, 1977 & 1987. He has been serving as Chairman of J&K Hurriyat Conference (G), a faction of All Parties Hurriyat Conference, which split up in 2003.

7. That hundreds of former Legislators and some Members of Parliament are detained on/before August 5, 2019 the day Parliament of India amended the Constitution of India and reducing the statehood status of Jammu and Kashmir by bringing it (J&K) as Union Territory. The Govt. of India bifurcated the State of J&K into two Union Territories. Leh & Kargil were identified as Union Territory of Ladakh whereas Jammu and Kashmir was described as Union Territory of Jammu and Kashmir.  Jammu and Kashmir comprised of Jammu and Kashmir, Ladakh, Kargil, Gilgit & Baltistan with its 84,000 sq. miles of Territory raised under the leadership of Dogra Maharaja’s in 1846. Jammu and Kashmir was one of the oldest states which had acceded to the Union of India when its’ Ruler, Maharaja Hari Singh signed the Instrument of Accession on October 26, 1947. Pakistan using its invaders occupied a portion of J&K State called by Pakistan later as ‘Azad Kashmir’. Its territory has been nearly 4600 sq. miles. The matter was brought before the United Nations by India seeking intervention of the United Nations for the vacation of all occupied territories of J&K namely, POK.
8. That Pakistan instead of vacating POK invaded the Gilgit-Baltistan which was integral part of Jammu and Kashmir under the J&K Rulers till 1948. Pakistan instead of vacating the J&K occupied areas, POK, invaded Gilgit & Baltistan, detained the Governor of Gilgit & Baltistan, Brig. Ghansara Singh in 1948. Pakistan had violated the Security Council Resolution which directed Pakistan to vacate all occupied territories of J&K.
9. That the people of J&K stood like a rock under the Indian Flag in 1947 under the leadership of Sheikh Mohd. Abdullah and others and supported the Accession of J&K with Union of India.
10. That the people of Jammu and Kashmir were not provided full protection to enjoy all the fundamental rights which were enshrined in Chapter-III of the Indian Constitution. In 1954, the President of India introduced amendment in Article 35 by adding Article 35-A empowering the State Govt. of Jammu & Kashmir to introduce restrictions on the scope of the Fundamental Rights enshrined in Article 12 to Article 35.
11. That this amendment in 35-A was not an Act of Parliament as it was an exercise of power by the President of India to introduce this Presidential Order which could not survive beyond six months under the Constitution.
12. That Jammu and Kashmir passed through many political upheavals. The people of J&K stood for national integration, secularism and democracy under the Tricolour Flag.
13. That Jammu and Kashmir elections for Assembly in 2014, where a coalition government was formed under the leadership of Late Mufti Mohammad Sayeed as its Chief Minister. After the death of Mufti Mohammad Sayeed on 07.01.2016, his daughter Ms. Mehbooba Mufti took over as the first woman Chief Minister of J&K with the cooperation of BJP legislators on 04.04.2016. She was dismissed on 19.06.2018. Unfortunately, the coalition could not enjoy the confidence of the people of J&K. The Govt. was dissolved by the President of India and Governor Rule was imposed on 20.6.2018 under Section 92 of J&K Constitution.
14. That the Governor, Shri Satya Pal Malik dissolved the J&K Legislative Assembly on 21.11.2018 under Section 92 of J&K Constitution.
15. President’s Rule was replaced the Governor’s Rule in Jammu and Kashmir on 03.07.2019.An official statement based on the prevailing situation in the state as stated in the report of Governor of Jammu and Kashmir, the Union Cabinet, chaired by the Prime Minister approved the extension of President’s Rule in J&K for a further period of six months with effect from July 3, 2019, under Article 356(4) of the Constitution of India.
16. On 25.10.2019, J&K Governor Satya Pal Malik was shifted to Goa as Governor whereas Lt. Governors were appointed for Ladakh and Jammu & Kashmir when the two union territories were created on October 31, 2019.
17. That the national leadership of the ruling party declared that the statehood of Jammu and Kashmir (except Ladakh region) shall be restored. The people in Jammu and Kashmir have been waiting for the restoration of statehood status and revival of all fundamental rights to the citizens of India in Jammu and Kashmir as enshrined in Chapter-III of the Indian Constitution.
18. That the Govt. in Jammu and Kashmir under President’s Rule, unfortunately, adopted a hard line detaining/arresting almost all political party leaders in Jammu and Kashmir who did not agree with the command of the Central leadership.
19. That according to the reliable information/the print media there are more than 500 political activists including ex-legislators, ex-ministers, ex-state ministers, the office bearers of recognized regional political parties and even others who belong to national political parties have been detained in prisons, private hotels, government Dak Bungalows and at their own residences under the so-called Jammu & Kashmir Public Safety Act, 1978, unconstitutionally and in violation of the fundamental rights of the Indian citizens residing in Jammu and Kashmir as ‘Permanent Residents’. Some of them have been mentioned in the petition for the information of the Hon’ble Court.

20. That according to the reliable sources and the national  newspapers thousands of political activists from different walks of life and fields were detained by the administration of J&K under Public Safety Act. Hundreds of them were detained in hotels, government houses/rest houses, legislator houses (MLA hostels) by J&K Govt.
21. That many of them were affiliated/associated with national and regional recognized political parties who were political activists, ex-legislators, ex and present Members of Parliament including some of them who are mentioned in this Writ Petition.
22. That in Jammu and Kashmir Chapter-III of the Constitution of India provides/guarantees all fundamental rights without any restrictions or reservations to all residents of Jammu and Kashmir, as they were applicable in the rest of the country after the abrogation of Article 35-A.
23. That the State of J&K had enacted Public Safety Act in 1978 to control/restrict the application of fundamental rights to the citizens of India in J&K by virtue of Article 35-A. After the removal of Article 35-A in Chapter-III of the Indian Constitution turned fully applicable/ stood fully applicable in the State of J&K and no person could be detained without trial beyond three months in J&K under the command of Chapter-III in the Indian Constitution. Article 35-A was abrogated by Presidential Order on August 5, 2019 as it was only a Presidential Order.
24. As per reports in a section of the Indian press hundreds of political activists were detained under Public Safety Act (which had become redundant since August 5, 2019) the day President of India abolished Article 35-A through a Presidential Order. It was not an Act of Parliament and therefore the President exercised his power to withdraw this Article from its application in J&K on August 5, 2019.
25. That all detentions made by the Govt. of Jammu & Kashmir detaining Indian citizens, residents of J&K, under the so-called J&K Public Safety Act turned illegal, unconstitutional, malafide and amounted to violation of the fundamental rights enshrined in Chapter-III of Indian Constitution. Article 35-A is no more applicable in Jammu and Kashmir and the J&K administration has no competence to exercise its legislature power.
26. That the J&K National Panthers Party has been trying for the past six months to collect the information with details/names/ addresses of all those detenus who have been detained under J&K Public Safety Act, 1978 on or after August 5, 2019. The present State Govt/administration/ police officials are not prepared to disclose any information on detentions of the Indian citizens in Jammu and Kashmir under the PSA.
27. That the continued detention of the residents of Jammu and Kashmir who are the citizens of India under a dead Law, J&K Public Safety Act beyond six months in detention inside Jammu and Kashmir or outside the State are illegal, unconstitutional, malafide and an utter violation of the principles of natural justice as well as in violation of all fundamental rights guaranteed in Chapter-III of Indian Constitution which is fully applicable to all the residents of J&K, citizens of India residing in Jammu & Kashmir.

28. That the petitioner is approaching this Hon’ble Court on following amongst other:-

G R O U N D S:

5. Because the misuse of the provisions of Jammu and Kashmir Public Safety Act, 1978, which is a redundant legislation and has lapsed after the deletion of Article 35-A from the Constitution of India by a Presidential Order dated 05.08.2019, inasmuch as it violates the spirit of Constitution, individual liberty, which is the soul of democratic Constitution. Moreover the Govt. has shown no tangible evidence which suggest that the about 600 detenues were indulging in activities which were causing problems or threatening the peace and tranquility in Jammu and Kashmir.
6. Because that the Presidential Order which brought Jammu and Kashmir in the list of Union of Territories, dissolved/removed the Constitution of Jammu and Kashmir and brought the Union Territory under the Jammu and Kashmir Reorganization Act, 2019, No.34/2019 dated August 9, 2019. The State Laws including Governor’s Acts that remained in force in Union Territory of Jammu and Kashmir and Union Territory of Ladakh remained applicable included the Jammu and Kashmir Public Safety, 1978. That was marked at Srl. No.123 in the Gazette of India Extraordinary dated August 9, 2019. A copy of the Gazette dated 09.08.2019 is enclosed herewith as ANNEXURE-P2. (Page … to….)

III.      Because that inclusion of the Public Safety Act in the list of the Acts/Laws which remained in force in the Union Territory of Jammu and Kashmir was not in accordance with the constitutional mandate as was not applicable on that date in respect of Jammu and Kashmir even if Jammu and Kashmir was brought in the list of Union Territories.

5. Because Article 22 of the Constitution of India provides protection against arrest and detention beyond three months without trial. Article 22(4) provides no law providing for preventive detention shall authorize the detention of a person for a longer period than three months without trial. In the present case the detention of hundreds of political activists has crossed six months’ period who were arrested/detained under PSA on 05.08.2019.

1. Because that Jammu and Kashmir Public Safety Act was enacted by the Assembly of J&K in 1978 under a different legal situation. At that time Article 35-A was applicable in respect of Jammu and Kashmir and the J&K Assembly was empowered under the Constitution to enact any Law even if that would place a restriction/bar on the application of any of the fundamental rights as enshrined in Chapter-III of the Indian Constitution in respect of J&K. The President had issued Presidential Order in 1954, a Presidential Ordinance that had vested legislative/executive power in the Legislative Assembly of J&K to place any restriction on any of the fundamental rights application in Jammu and Kashmir.

1. Because this Presidential Order was revoked by the President on August 5, 2019 which withdrew Article 35-A. Article 35-A was the only source of power which could have restricted application of any of the provisions contained in Chapter of Fundamental Rights of the Indian Constitution.

VII.    Because that this Item 123 keeping a dead Law alive in the Union Territory of Jammu and Kashmir was in contravention of the fundamental rights, hence ultra virus. The citizens of Jammu and Kashmir after the abrogation of Article 35-A could not have been deprived or denied any of the fundamental rights in the Constitution and no Law authorizing the Union Territory or any Law therein could have deprived the citizens of India in Jammu and Kashmir of their fundamental rights guaranteed to them unconditionally in Chapter-III of the Indian Constitution. Item No.123 keeping PSA alive was unconstitutional, malafide and violative of fundamental rights in J&K.

VIII.   Because that inclusion of Item No. 123 in the List of State Acts by the Presidential Order as mentioned in the Gazette of India Extraordinary is totally illegal, unconstitutional, malafide and violative of fundamental rights of the Indian citizens residing in Union Territory of J&K.

1. Because since the day Article 35-A was expunged, any law/rule etc. made by the Legislative Assembly earlier could not have been kept alive on oxygen by any extraordinary law. Article 35-A is gone so all the laws made under the command of that order are no more relevant if they infringe fundamental rights in J&K. Hence the J&K Public Safety Act, 1978 cannot be used as a sword against the citizens of India/residents of Jammu and Kashmir after the creator of the law has expired under Presidential Order.
2. Because that no citizen/person can be detained without trial beyond three months under detention and the political prisoners in J&K belonging to different recognized national and regional political parties have been under illegal detention for more than six months in the detention centers/ private houses/hotels/government hostels and even in their own private houses since August 5, 2019. They have completed detention under the President’s Rule in J&K.
3. Because that the fundamental rights guaranteed in Articles 14, 19, 21, 23 among other provisions have been violated by the illegal, unconstitutional and malafide detention in Jammu and Kashmir which has now been reduced to a Union Territory which itself was a discriminatory and not acceptable by the residents of J&K (Ladakh not included).

XII.    Because that the detentions of hundreds of political activists and other persons have been detained under Jammu & Kashmir Public Safety Act, 1978, which became redundant/dead, the day President of India through Presidential Order dated 05.08.2019 abrogated Article 35-A.

XIII.   Because that Article 35-A was imposed by the Presidential Order (Dr. Rajendra Prasad was the President of India) on the request of the then Prime Minister of India in 1954. It was only a Presidential Order not enacted by the Parliament could not have lost/survive beyond six months. In fact, the Presidential Order relating to extension of Article 35-A had expired after six months after its imposition. Article 35-A had become dead after six months of its imposition in 1954 itself. However, this, Article 35-A has been demolished by the Presidential Order. The reason shall have to be given by the State if this Hon’ble Court may be pleased to seek this information from the Union of India.

XIV.  Because that this is an established Law in practice that a person or Indian citizen shall not be detained without trial for more than three months. This was the reason that several detention laws like National Security Act were enacted by the Parliament. Not for more than three months for a detention without trial could not be extended. The state, the detaining authority of Jammu and Kashmir declared the other day that the prominent detenus including former Chief Ministers, former Ministers, former Legislators and even present sitting Member of Parliament who completed six months in detention without trial shall continue in detention.

1. Because that the detention without trial, this case in Jammu and Kashmir as mentioned above are illegal, unconstitutional, malafide and in violation of all fundamental rights guaranteed to the citizens of India being Permanent Residents in J&K who have completed more than six months under the orders of J&K Administration which is run under the nose of Lt. Governor appointed by the Govt. of India after demolishing the statehood of Jammu and Kashmir.

XVI.  Because that the Govt. Order demolishing the State of J&K founded in 1846 by its first Maharaja (King) Gulab Singh after uniting Gilgit-Baltistan, Jammu and Kashmir with Ladakh was totally malafde, unconstitutional and unacceptable. Those who were opposed to this discriminatory political treatment to the State of J&K and the political leadership have been detained under this illegal J&K PSA and all the political activities in Jammu and Kashmir have been sealed as Chapter-III of Indian Constitution guarantying fundamental rights to the Indian citizens in J&K which became available only after the removal of Article 35-A have also been buried by taking away all the fundamental rights guaranteed in Articles 14, 19, 21, 23, 25 & 26 under PSA, which is no more a valid Law.

XVII. Because that the ruling parties in India had assured that statehood shall be restored to Jammu and Kashmir which has not been done even after six months instead there is no smell or grace of human rights in Jammu and Kashmir.

XVIII. Because that all the detentions of Indian citizens associated with National or Regional political parties or even other Indian citizens affiliated with other political parties are involved in social activities have been looking towards the judiciary alone which has been protecting the citizens of India in Jammu and Kashmir also even when fundamental rights were not available in the state because of the shadow of Article 35-A.

29. That petitioner has not filed any other petition earlier before this Hon’ble Court or any other Hon’ble High Court for same and similar relief.

P R A Y E R

          It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:-

a).     issue appropriate order/direction declaring the J&K Public Safety Act, 1978 as invalid Law which was enacted by Jammu & Kashmir Legislature in 1978 by virtue of the exclusive jurisdiction of J&K under Article 35-A.

b).     issue an appropriate writ, order or direction to the respondents particularly the Union of India to direct the respondents namely, the Ministry of Home Affairs to release all the detenus who were detained on or before August 5, 2019 and who have completed more than three months in detention without trial in Union Territory of Jammu and Kashmir;

c).     direct the respondents to provide immediate medical relief/ medical care to all the detenus from Jammu and Kashmir lodged in prisons in J&K or outside the state or lodged in their private houses/government Guest Houses/Private Hotels in J&K with direction to the respondents to provide free legal aid and assistance to all detenus;

d).     direct the Union of India and the respondents to grant appropriate compensation to all the detenus who have completed six or more months in illegal detention in J&K/outside J&K under the detention order of J&K Public Safety Act, 1978, which had lost its existence as valid law;

e).     direct the respondents to allow any relative, a lawyer to meet any such detenus during their detention in state prisons or in private houses;

f).      direct the respondents to restore the statehood to J&K which was declared/established as a State of Jammu and Kashmir in 1846 by the founding Maharaja Gulab Singh and continued as recognized state till 2019;

g).     direct the respondents/Union of India to appoint Delimitation Commission in Jammu & Kashmir and hold fresh Assembly election in 2020 after delimitation of the constituencies in J&K so that confidence of the people in democracy, rule of law and Indian Constitution is not shaken by the enemies of peace and rule of law.

AND FOR THIS ACT OF KINDNESS THE CITIZENS OF INDIA RESIDING IN JAMMU AND KASHMIR SHALL EVER REMAIN OBLIGED.

DRAWN & FILED BY:

PROF. BHIM SINGH

1. ADVOCATE

PETITIONER-IN-PERSON

C/O 9, LAWYERS’ CHAMBER

SUPREME COURT, NEW DELHI-110001

MOB:9871565333

DATED: 13.02.2020

PLACE : NEW DELHI