Constitutional Courts Are Guardians Of Citizen's Fundamental Rights, Must Be Extra Sensitive When Personal Liberty Is Violated: J&K High Court

A bench of Justice Rahul Bharti has stated that subjective satisfaction of the authorities for issuing detention orders cannot be construed as a matter of wordplay while assuming that they have an omnipotent power and authority to subject any person to suffer preventive detention at any given point of time.

Lambasting such assumptions the court asserted that such approach needs a reality check and remarked,

“Constitutional courts are the guardian of the guarantees of fundamental rights to the citizens of the country and in the event of violation of a fundamental right in particular that of right to life and personal liberty, a constitutional court is meant not only to be extra sensitive but pro-active in immediately curbing the situation which is generating the violation of said fundamental right to life and personal liberty”.

The case arose from a writ petition challenging a preventive detention orders issued by the District Magistrate of Baramulla. The petitioner, Suhail Ahmad Lone, was first detained on 9 November 2021 under an order citing threats to the maintenance of public order. This order was based on allegations linked to three FIRs registered by the Police Station Sopore. The one-year detention ended following a High Court order for his release.

However, barely 13 days later, a second detention order was issued, this time on grounds of threats to the security of the state. This repeated detention, despite no change in circumstances, led Lone to challenge the new order in court, citing it as a frivolous exercise of discretion by the District Magistrate.

Lone's counsel argued that the second detention order was a replica of the first, with only minor additions that were factually baseless. He contended that the authorities were abusing their powers, infringing on Lone's fundamental right to personal liberty under Article 21 of the Constitution of India.

The respondent authorities, on the other hand, maintained that Lone's activities continued to pose a significant threat, justifying the repeated use of preventive detention.

Criticising the detaining authorities actions the court noted that the grounds for both detention orders were nearly identical, with the second order merely adding a few paragraphs without substantial new facts. The Court questioned how the same set of circumstances could initially be deemed prejudicial to public order and later to state security without any intervening developments.

“There is absolutely nothing in the name of the facts as to what happened in the intervening 13 days of purported liberty of the petitioner upon his purported release upon the passing of the order dated 14.11.2022 by this Court in WP(Crl) No. 86/2022 and 28.11.2022 when the impugned preventive detention order came to be passed against the petitioner by the respondent No. 2 – District Magistrate, Baramulla”, the bench pointed.

Emphasizing that such practices by the District Magistrate and the government implied a misuse of omnipotent power, the court quashed the detention order along with its subsequent approvals by the government.

Authorities were directed to immediately release Lone provided he was not required in any other case.

Case Title: Suhail Ahmad Lone Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 163

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