Major Setback for MLA Mehraj Malik: High Court Questions Its Power to Allow PSA Detainee to Attend Assembly Session
Jammu, October 27 — The Jammu and Kashmir High Court today heard the plea of MLA Mehraj Malik, representing the Doda constituency, who is currently detained under the Public Safety Act (PSA) in Kathua Jail. The matter came up before Justice Mohammad Yousuf Wani, who presided over the hearing.
During the proceedings, the court examined whether it had the authority to allow a legislator detained under the PSA to attend the ongoing Legislative Assembly session in Jammu. Justice Wani raised an important legal question:
> “Does the High Court have any power under the Public Safety Act to direct that a person, who is under preventive detention, be taken to the Assembly to participate in its proceedings?”
Advocate Sunil Sethi, appearing on behalf of the State Government, strongly opposed the application and argued that no such power exists under any provision of law. He maintained that a person detained under the Public Safety Act remains in the lawful custody of the government and cannot be permitted to move freely or participate in legislative activities, as that would defeat the very purpose of preventive detention.
Sunil Sethi further clarified that Mehraj Malik is not under judicial custody but under the custody of the government. Therefore, the applicant should first approach the government for permission to attend the Assembly session, not the court.
He added that if the government refuses to grant such permission, the applicant may then challenge that refusal order before the High Court. But at the current stage, on constitutional and technical grounds, this application is not maintainable before the High Court.
Sethi emphasized that the High Court cannot intervene in administrative detention matters except on limited grounds such as procedural illegality or violation of fundamental rights, neither of which applies in this case.
On the other hand, the counsel for the applicant (Mehraj Malik) argued that in a similar precedent, Engineer Abdul Rashid, who was also under detention, was permitted to attend the Parliament session, and the same principle should be applied here to allow Mehraj Malik to represent his constituency in the Legislative Assembly.
However, Advocate Sunil Sethi countered this argument, clarifying that Engineer Rashid was detained under the Unlawful Activities (Prevention) Act (UAPA), not under the Public Safety Act (PSA). He pointed out that the PSA is more restrictive, and unlike the UAPA, it does not provide any provision for temporary release or participation in legislative proceedings.
After hearing both sides, Justice Mohammad Yousuf Wani observed that the matter raises an important legal question about the maintainability of the application itself and the extent of the High Court’s powers under the PSA. The court decided to hear detailed arguments on October 30 (Saturday) to determine whether the application is maintainable or not.
Given that the Jammu and Kashmir Assembly session is scheduled to conclude on October 31, even if any order is passed on October 30, it would be practically impossible for Mehraj Malik to attend the current session.
This development marks a major setback for the Doda MLA, as it effectively rules out his participation in the ongoing Assembly proceedings. His main PSA detention case, challenging the legality of his detention, is listed for a separate hearing on November 8.
