jammu and kashmir and ladakh high court

Jammu and Kashmir and Ladakh High Court: While deliberating over the instant petition challenging detention order issued by District Magistrate, Ramban (detaining authority) on the grounds that the detenue tried to create communal dissentions and that he is in close contact with his elder brother who had joined militancy about 25 years ago and crossed over to Pakistan and is presently operating from Pakistan; the Bench of M.A. Chowdhary, J.*, quashed the impugned detention order stating that just being brother of a militant, who exfiltrated to POK (Pakistan Occupied Kashmir) and without any ostensible activities in the direction of public peace or security, cannot justify the petitioner’s preventive detention. The live and proximate link between the past conduct of the detenue and the imperative need to detain, must be harmonised to rely upon the alleged illegal activities of the detenue.

Background: The detaining authority in exercise of powers under S. 8 of Jammu and Kashmir Public Safety Act, 1978, passed the impugned detention order Dated 27-09-2022 against the detenue.

Contentions: The detenue challenged the order on the ground that it violates Art. 21 of the Constitution. The detenue further contended that no specific allegation has been attributed against the petitioner and that the impugned order is in English which is an alien language for the detenue.

Per contra, the respondents justified the issuance of the impugned order contending that detenue was ordered to be detained for maintenance of ‘public order’ and had he been let free, there would have been every likelihood of his re-indulging in anti-national/criminal activities. It was further stated that the detenue instigates and provokes the general masses, particularly youths of Banihal and its adjoining area against the Government and to disturb peaceful law and order the detenue tried to create communal tensions.

The respondents further stated that the detenue is in close contact with his elder brother who had joined militancy about 25 years ago and crossed over to Pakistan and is presently operating from Pakistan, via mobile and social media, and that he has been providing information regarding sensitive matters of this side to his brother who is a terrorist.

Court’s Assessment: Perusing the facts of the case and contentions, the Court observed that personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. “It was for this reason that the Founding Fathers enacted the safeguards in Art. 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Art. 21 of the Constitution, by humanising the harsh authority over individual liberty”.

The Court further stated that in a democratic nation such as India, drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes in conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.

The Court noted that law requires that whole record, upon which the detention order is based, has to be made available to the detenue in the language that he understands. However, the Court pointed out that the detaining authority did not do so in the instant case and the failure on the part of the detaining authority to supply material renders detention illegal and unsustainable.

The Court stated another reason for impugned order being vitiated was that since the detenue’s right to make a representation to the detaining authority was only available to him till approval of detention order by the Government, the detaining authority should have communicated this very time limit in which the detenue could make a representation.

Furthermore, the Court stated that just because the detenue’s elder brother exfiltrated to POK and has been indulging in militancy, the same does not become a ground for preventive detention especially when the detenue has not done anything ostensibly to disturb public order. “Old and stale incidents shall be of no use.”

With the afore-stated assessment, the Court deemed it fit to quash the impugned detention order.

[Sadam Hussain Ganie v. Union Territory of J&K, 2023 SCC OnLine J&K 641, decided on 12-09-2023]

*Judgment by Justice M.A. Chowdhary

Advocates who appeared in this case :

Detenue/petitioner- R.K.S Thakur, Adv and Neha Abrol, Adv.

Respondents- Eishaan Dadhichi, GA

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