The High Court has directed J&K High Court Bar Association (JKHCBA) to file rejoinder to the report submitted by the government pertaining to shifting of prisoners to the jails outside the state.
The direction came after the government submitted response over the amendment in Public Safety Act (PSA) before the division bench comprising Justice Ali Mohammad Magrey and Justice Sanjeev Kumar.
In its report, the government submitted before the Court that PIL filed by JKHCBA with regard to shifting of PSA detenues to outside jails is not maintainable as same is against PIL rules and the guidelines issued by Supreme court of India.
The report states that the petitioner association has no cause of action to be agitated as, “none of their rights legal, constitutional or others have been violated by virtue of the Amendment in Public Safety Act, 1978 and therefore being violative of PIL rules and as per Supreme court guidelines, the petition challenging the Amendment be dismissed.”
The response submitted by Deputy Secretary to Government, Home Department states that keeping in view the security concerns and Law & order problems in the State, “it was considered desirable that certain hardcore militants and over ground workers (OGWs) are required to be shifted to outside jails as necessitated by circumstances from time to time. To segregate the hardcore prisoners from the other prisoners, it was felt necessary to undertake the required amendment in the Jammu and Kashmir Public Safety Act, 1978 by deleting provision to section 10 of the said Act,” reads the report.
While citing the example of the slain militant Naveed Jatt, who escaped in February 2018, the report states that while Jatt escaped from police custody wherein two police men accompanying were killed in firing.
Consequently, the State Government took extensive review of all the jails of the State.
“A number of steps were taken to segregate various categories of prisoners. A number of convicts, under trial and detenues have been shifted from Kashmir based jails to Jammu based jails,” reads the response.
In November last year around 40 PSA detenues were shifted from Kathua and Kotbalwal Jail to Haryana Jails of Jajjar and Karnal.
The families of the prisoners had alleged that government without informing them had shifted the detenues to outside jails and they were declined to meet detenues lodged in these jails.
The report reveals that there are 17 Jails (2 central jails, 13 district jails and 2 sub jails), of which 14 Jails are currently operational. The two new district jails at Kargil and Bhaderwah are under construction. The capacity of operational jails is approximately 2500 which currently houses over 3000 prisoners, including about 100 foreigners and over 300 militants.
“Considering lack of adequate infrastructure and dilapidated conditions in certain jails, while some Jails are operating beyond their capacity, these needed to be decongested on a high priority. Therefore, it was necessary that hardcore detenues were shifted to outside jails based on relevant record,” the response reads.
The report also states that moreover, the buildings and security related infrastructure also need to be significantly upgraded, in a time bound manner, through adequately enhanced financial support from the State Government.
After submitting the report, the High Court directed Petitioner Counsel, Mian Tufail to file rejoinder to the State’s response.
Earlier, when the State was placed under Governor’s rule on June 20, 2018, J&K PSA 1978 was amended in terms of Jammu and Kashmir Public Safety (Amendment) Act, 2018 (Governor’s Act No. III of 2018), and the Proviso added to Section 10(b) of J&K Public Safety Act was omitted.
The J&K High Court Bar Association challenged the Amendment Act, after 40 detenues of J&K were shifted to Haryana jails wherein the detenues are facing hardships and are not being permitted to meet their families and stated that by making an amendment in Public Safety Act was an extra-territorial piece of legislation, “which is legally invalid.”
The amendment was also contrary to the five Judge Bench Constitutional Judgment of the Supreme Court, besides Prisons Act, Prisoners Act and Jail Manual, the lawyers’ body had said.
“In terms of Section 10 of the PSA, as it originally stood, any person in respect of whom a detention order has been made, was liable to be detained in such place and under such conditions, including conditions as to the maintenance of discipline and punishment for breaches of discipline, as the government may by general or special order specify and to be removed from one place of detention to another place of detention in the State, by order of the government.”