SRINAGAR The State government on Wednesday sought to defend its amendment in J&K PSA, allowing shifting of detainees to jails outside Jammu and Kashmir.
Among others, the government has cited overcrowding in jails and security reasons to amend the PSA Act.
Waseem Raja, Deputy Secretary to Government, Home Department, in an affidavit filed before the high court said that there are 17 Jails 2 Central Jails, 13 District Jails and 2 Sub Jailsof which 14 Jails are currently operational. Further, two new District Jails at Kargil and Bhadenvah are under construction. The capacity of operational Jails is 2500 (approx), 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, he said.
Overcrowding of prisons, inadequacy of staff and poor living conditions for the inmates have been some of the key areas of Apex Court’s interventions, the officer said, referring to various orders passed by the Supreme Court in the matter of Re-Inhuman Conditions in 1382 Prisons.
It is envisaged, he said, that various measures would continue to be taken for improvement of State Jails and the living conditions of its inmates, while keeping in view the overall internal security concerns.
During the past few months, considering the internal security concerns based on specific inputs of various agencies and with a view to de-congesting certain jails, a number of prisoners were shifted to Jammu based Jails from Kashmir. Besides, expeditious steps have also been taken to critically review the cases of foreign prisoners lodged in various State jails, who could he recommended to the Government of India for their repatriation to their native country.
Following LeT commander Naveed Jatt s escape from SMHS Hospital Srinagar last year, the officer said,
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 (detainees) have been shifted from Kashmir based jails to Jammu based jails. Jatt was killed after few months in encounter with government forces in central Kashmirs Budgam district.
Further, 25 Pakistani (detainees) who were awaiting deportation after completion of sentence were shifted to Tihar Jail, New Delhi. However, the problem of the mixing of the hard core (militants) with the other prisoners who were indoctrinating the fellow (detainees) continued and the Government was not in a position to particularly shift the State Subject (detainees) and (hard core militants) to the jails outside the State, in view of the bar imposed by proviso to Section 10 of the J&K Public Safety Act, 1978, he said, adding, To segregate these hardcore persons from the other prisoners it was felt necessary to undertake the required amendment in the Jammu and Kashmir Public Safety Act, 1978 by deleting proviso to section 10 of the Act.
The Kashmir High Court Bar Association maintains that shifting of Kashmiri detainees to the jails located outside the State, 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 said.
On 26 May 1986, when Governors Rule was imposed in the State and Jagmohan was appointed as the Governor of the State, he immediately after taking over passed Act no. 11 of 1986, known as J&K Public Safety (Amendment) Act, 1986.
In terms of Section 2 of the Act, he amended Section 10 of the Principal Act, whereby the words in the State in Clause(b) of Section 10 of J&K PSA were omitted.
The amendment to Section 10(b) of the Principal Act of 1978 lapsed after the period of two years as provided in Section 92(4) of the Constitution of J&K and thus the position as it existed prior to the passing of the Amendment Act of 1986 got revived and the powers of the Government to regulate the place of detention was once again limited to the territories of the State of J&K, Bar said.
On 19th of January, 1990, the State of J&K was again placed under the Governors Rule and Jagmohan was again appointed Governor of J&K State.
After his taking over as the Governor of J&K State, he passed PSA Act 1990 (Governors Act No. 1 of 1990 [04th February, 1990]), whereunder, he again amended Section 10 of the Act of 1978 and in clause(b) of Section 10 of the J&K PSA, 1978, the words in the State were omitted.
On 10 March 1990, it was challenged by the Association before the Court at Srinagar and a Division Bench on 4 April 1990, directed the State that the persons detained under the J&K PSA be not lodged outside the State of J&K.
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