jammu and kashmir and ladakh high court
Jammu and Kashmir and Ladakh High Court: While deliberating over the instant petition was filed by the father of the detenue wherein he challenged the detention order passed against his 22-year- old son on 08.04.2022; the Bench of Atul Sreedharan, J.*, perused several grounds upon which the petitioner’s son was detained and made an important observation on one of the grounds for detention, i.e., the detenue has a fundamentalist ideology. The Court observed that the usage of the phrase “fundamentalist ideology” by the District Magistrate, does not necessarily mean that the detenue possess an extremist or separatist ideology. Fundamentalism pertaining to a Muslim, is merely someone who believes in the fundamentals of Islam and steadfastly pursues the same. It cannot have a negative bearing on his personality. “The same is as a fundamentalist Muslim cannot be equated with an extremist or a separatist”.The impugned detention order was passed in exercise of powers vested in the District Magistrate, Pulwama by Section 8(a) of Jammu & Kashmir Public Safety Act, 1978 directing the detention of the petitioner in Kot Bhalwal Jail, Jammu. The impugned order of detention disclosed that it was necessary to detain the petitioner under the provisions of the Act of 1978, in order to prevent him from acting in any manner, prejudicial to the security of the State and the order was accompanied by the grounds of detention.


The petitioner contented that grounds of detention are vague, non-specific with regard to date and time of the alleged acts prejudicial to the nation.


Per contra, the respondents contended that detenue has become a “hard core fundamentalist” and voluntarily agreed to work as Over Ground Worker (OGW) of the The Resistance Front (TRF) which according to the counsel, is an outfit of LeT.


Vis-à-vis the petitioner’s contentions with regards to the vagueness, the Court broadly went through the grounds. It was noted that detenu is an active member of terrorist organisation TRF (The Resistance Front) and is helping the organisation in its subversive activities in and around district Pulwama. The Court pointed out that no details with regard to the date from which the petitioner had been a member of the organisation or the nature of the subversive activities, were specifically mentioned in the ground.


Vis-à-vis the ground regarding detenue’s fundamentalist ideology, the Court observed that adherents of the Abrahamic Faith have to necessarily believe in certain fundamentals of the religion to be accepted as the adherents of that religion. Therefore, someone who steadfastly pursues or follows the fundamentals of an Abrahamic faith, is undoubtedly a fundamentalist but there is no negativity associated with it and it is distinct from an extremist or a separatist. The Court referred to Oxford dictionary meaning of “fundamentalism” which means that the strict maintenance of traditional orthodox religious beliefs of doctrines; ESP belief in the inerrancy of scripture and literal acceptance of the creeds as fundamentals of protestant Christianity”.


The Court observed that being a fundamentalist Muslim cannot have a negative bearing on the detenue’s personality.


The Court allowed the petition and quashed the impugned detention order, however, the Court clearly stated that observations made in this order shall not influence the Trial Court while adjudicating the case of the detenue.


[Shahbaz Ahmad Palla v. UT of J&K, 2023 SCC OnLine J&K 394, decided on 19-07-2023]

 *Order by Justice Atul Sreedharan

Advocates who appeared in this case :

For petitioner: Shabir Ahmad, Advocate

For respondent: Rais-u-din Ganie, Dy. AG and Ilyas Nazir Laway, GA      

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