Replacement of ‘State’ with ‘UT’ a consequential change
Excelsior Correspondent
JAMMU, May 15: The High Court of Jammu & Kashmir and Ladakh has held that the continuance and adaptation of the Jammu and Kashmir Public Safety Act, 1978 after the 2019 Reorganisation flows directly from Parliamentary mandate and not from executive action.
The observation was made by Justice Wasim Sadiq Nargal while dismissing a habeas corpus petition filed by Tanveer Ahmad Mir through his wife Posha Begum challenging Detention Order No. 09/DMB/PSA/2025 dated April 29, 2025, passed by the District Magistrate, Baramulla under Section 8(a) of the Jammu and Kashmir Public Safety Act, 1978.
The detenue was alleged to be an active Over Ground Worker affiliated with banned terrorist outfit Lashkar-e-Taiba and accused of providing logistical support, shelter, transportation and assistance to terrorists operating in Sopore and adjoining localities.
The petitioner argued that the Jammu and Kashmir Public Safety Act, 1978 was originally enacted under the constitutional framework applicable to the erstwhile State of Jammu and Kashmir and, therefore, after enactment of the Jammu and Kashmir Reorganisation Act, 2019, the expression “security of the state” could not have been substituted with “security of the Union Territory” except by Parliamentary legislation.
The High Court, however, rejected the contention and observed that Sections 95 and 96 of the Jammu and Kashmir Reorganisation Act, 2019 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 High Court observed that Section 95 specifically preserves the operation of laws enumerated in the Fifth Schedule and declares that such laws shall continue to apply to the Union Territory of Jammu and Kashmir. “The continuance of the Jammu & Kashmir Public Safety Act, 1978 after reorganisation does not arise from any executive action, but directly from Parliamentary mandate embodied in the Reorganisation Act itself”, the High Court added.
Referring to Section 96 of the Reorganisation Act, the High Court observed that Parliament itself delegated limited adaptation powers to the Central Government to remove inconsistencies and align pre-existing laws with the altered constitutional and administrative framework brought about by reorganisation.
The High Court further observed that S.O. 1229(E) dated March 31, 2020, whereby references to “State” in the Public Safety Act were substituted with “Union Territory of Jammu & Kashmir”, had been issued in exercise of statutory authority under Section 96 of the Reorganisation Act.
Rejecting the constitutional challenge, Justice Nargal held that the adaptation does not change the basic nature, object or policy of the Jammu & Kashmir Public Safety Act, 1978 and that the replacement of the word ‘State’ with ‘Union Territory’ is only a consequential change made because of the reorganization of 2019.
The petitioner had also challenged the approval accorded to the detention order under Section 8(4) of the PSA on the ground that it was not issued in conformity with Rule 33 of the Transaction of Government Business Rules framed for the Union Territory of Jammu and Kashmir and was also not expressed in the name of the President.
The High Court rejected the contention and observed that the detention order dated April 29, 2025, passed by the District Magistrate, Baramulla had been approved by the Government within the statutory period vide order dated May 5, 2025.
The High Court noted that the approval order had been issued by order of the Government of Jammu & Kashmir thereby clearly indicating that the approval was granted in the name and authority of the Government itself through duly authorized mode of transaction of business.
Justice Nargal observed that Rule 33 essentially regulates the transaction and disposal of Governmental business and allocation of functions amongst officers and departments. The High Court held that the petitioner had failed to place any material on record to establish that the officer authenticating the approval order lacked competence under the applicable Rules of Business or that the approval itself was not accorded by the Government.
The High Court further held that merely because the approval order has been authenticated by an officer of the Home Department does not invalidate the same.
Observing that no prejudice had been caused to the detenue, the High Court said 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.
The petitioner had further argued that the grounds of detention were a verbatim reproduction of the police dossier and reflected complete non-application of mind by the detaining authority. The High Court, however, held that every similarity between the police dossier and the grounds of detention cannot automatically lead to an inference of non-application of mind. The High Court observed that the sponsoring agency necessarily supplies factual material to the detaining authority and reference to such material in the grounds of detention is both natural and expected.
The High Court observed that the detention order also reflected consideration of the prevailing security situation in the Valley, particularly in the aftermath of the Pahalgam terror attack involving killing of tourists and the apprehension that the detenue could be reactivated for furthering terrorist objectives.
Accordingly, the High Court dismissed the petition along with all connected applications.
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