Article 22(5) | Everyday Delay By Detaining Authority In Dealing With Detenu's Representation Has To Be Explained: Jammu & Kashmir High Court

While quashing a preventive detention order under J&K Public Safety Act, the Jammu & Kashmir High Court has ruled that Constitution casts legal obligation on the Government to consider the detenu's representation as early as possible.

Justice Sanjay Dhar observed,

"Everyday delay in dealing with the representation has to be explained and the explanation offered must indicate that there was no slackness or indifference. Any unexplained delay would be breach of constitutional imperative and it would render the continued detention of the detenu as illegal."

The bench was hearing a plea against detention order on the ground that representation filed by detenu against his detention was not considered till date. Because of non-consideration of his representation, the detention order slapped upon the detenu was liable to be quashed, Counsel Kaiser Ali for the detenu argued.

Upon perusing the record Justice Dhar noted that the representation of the detenu had been received by the respondents. However, there was nothing in the detention record or in the counter affidavit filed by the respondents that could indicate the fate of this representation.

"Thus, the contention of the detenu, that his representation has not been considered by the respondents, appears to be well founded", the bench remarked.

Highlighting the mandate of Article 22(5) of the the Constitution of India, Justice Dhar observed, "There should be no slackness, indifference and callous attitude in consideration of the representation of the persons who are detained."

Holding that non-consideration of the detenu's representation constitutes violation of the constitutional right given to the detenu under Article 22 of the Constitution and it also amounts to failure of the respondents to discharge their statutory functions, the bench allowed the petition and the impugned order of detention passed against the detenu was accordingly quashed.

Case Title: Atta Mohd Khan Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 130

Counsel For Petitioner: Mr Kaiser Ali.

Counsel For Respondent: Mr Sajad Ashraf GA

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