'Unlawful Invasion Of Fundamental Rights': J&K High Court Quashes Illegal Detention, Orders ₹2 Lakh Compensation

While allowing his habeas corpus plea bench of Justice Rahul Bharti observed,

“This Court considers and reckons that this is a fit case to award compensation of an amount of Rs. 2 lac payable in faovur of the petitioner by the respondents.. A fundamental right under the Constitution of India is a guaranteed right to a citizen of India and, therefore, its invasion and breach in an unlawful manner and on frivolous/sham basis cannot be a pass-over for a constitutional court”.

Aftab a resident of Pulwama, who was pursuing higher education had been detained under the Jammu & Kashmir Public Safety Act, 1978, following an order from the District Magistrate, Pulwama. The detention was based on a dossier submitted by the Senior Superintendent of Police, Pulwama, which accused him of being involved with banned terrorist organizations and indulging in activities prejudicial to the security of the state.

Assailing his detention Aftab through Counsel GN Shaheen argued that the preventive detention order was illegal, baseless, and without any factual basis, highlighting the misuse of power by the authorities.

It was further argued that being student preparing for higher education, his unjust detention had disrupted his academic pursuits.

Upon scrutinising the grounds of detention Justice Bharti observed that the District Magistrate, Pulwama had resorted to exercise of jurisdiction under the Public Safety Act, 1978, taking it as a matter of plaything, which was oozing out from the very tone and tenor of the so-called grounds of detention.

Noting that the grounds were nothing but emptied verbosity having nothing in the name of contents for the petitioner, the court failed to trace any specific details on the back of which the respondents had been able to draw out alarming reference and profile against the petitioner.

Additionally the court declared that the detention order had also referred to the "security of the State," as a ground which had been rendered obsolete post the Jammu & Kashmir Reorganization Act, 2019, which replaced it with "security of the Union Territory of Jammu & Kashmir". This technical error rendered the detention order invalid, the court reasoned.

Acknowledging the illegal deprivation of the detenue's fundamental right owing to an unwarranted and misconceived preventive detention and his right to be compensated for it Justice Bharti stated,

“Release from illegal custody no doubt restores the fundamental right to personal liberty to an aggrieved person but it does earn him any succor for the injury received by him and to his person and for that the only remedy and relief that can be extended by a constitutional court is a compensation under public law remedy which in the present case the petitioner is entitled to have from this Court”.

Concluding that Aftabs detention was a gross misuse of jurisdiction under the J&K Public Safety Act, the court quashed the detention order and mandated his immediate release from custody. Additionally, acknowledging the wrongful deprivation of his liberty, the court awarded ₹2 lakh as compensation to Dar, payable by the Union Territory administration.

Case Title: Aaftab Hussain Dar Vs UT of J&K

Citation: 2024 LiveLaw (JKL)

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