Only Those Who Are Responsible For Public Order Maintenance Must Judge What National Security, Public Order Or Security Of State Needs: J&K&L HC

While upholding the detention of an alleged worker of Jaish-e-Mohammad (JeM), under the J&K Public Safety Act, 1978, the Jammu & Kashmir And Ladakh High Court last week observed that those who are responsible for national security or for maintenance of public order must be the sole judges of what the national security, public order or security of the State requires.

Observing that it is necessary to take preventive measures and prevent a person bent upon perpetrating mischief from translating his ideas into action, the Bench of Justice Tashi Rabstan stressed that preventive detention laws are devised to afford protection to society.

Further, noting that the basis of detention is the satisfaction of the executive of a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same, the court significantly observed thus:

"There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose," the Court further remarked.

The Court also stressed that the acts or activities of individual or a group of individuals, prejudicial to the security of the State or public order, have the magnitude of across-the board disfigurement of societies and therefore, no court should tune out such activities, being swayed by the passion of mercy.

"It is an obligation of the Court to constantly remind itself the right of society is never maltreated or marginalized by doings, an individual or set of individuals propagate and carry out...The court do not even go into the questions whether the facts mentioned in the grounds of detention are correct or false. The reason for the rule is that to decide this, evidence may have to be taken by the courts and that it is not the policy of the law of preventive detention. This matter lies within the competence of the advisory board," the Court added.

Regarding, the Court's power to examine the material, which is made the basis of subjective satisfaction of the detaining authority, the Court opined that it would not act as a court of appeal and find fault with the satisfaction on the ground that on the basis of the material before detaining authority another view was possible.

Importantly, referring to Ashok Kumar v. Delhi Administration and others AIR 1982 SC 1143, the Court said that any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment.

Further, the Court also noted that where individual liberty comes into conflict with an interest of the security of the State or maintenance of public order, then the liberty of the individual must give way to the larger interest of the nation.