Communicating Grounds For Detention In A Language Understood By Detenue Is A Constitutional Right: J&K High Court
LIVELAW NEWS NETWORK
13 Aug 2024 7:15 AM GMT
The Jammu & Kashmir and Ladakh High Court recently quashed a detention order issued by District Magistrate Kathua, citing a failure in procedural compliance, specifically the communication of the grounds of detention in a language understood by the detenue.
Justice Sindhu Sharma, emphasizing the importance of this requirement, observed that “communication means imparting to the petitioner sufficient and effective knowledge of the facts and circumstances on which the order of detention is passed and such communication in such language which the petitioner understands.
The court stressed that serving the grounds of detention is a "very precious constitutional right” and that unless these grounds are "fully explained or translated into a language" the accused understands, the validity of the detention is compromised, rendering it unlawful.
The District Magistrate had issued the preventive detention order under the Jammu and Kashmir Public Safety Act, based on allegations that the individual's activities were prejudicial to the maintenance of public order.
The petitioner challenged the detention order, arguing that he had not been informed about his right to make a representation before the Detaining Authority and was not provided with translated copies of the grounds of detention. It was contended that this omission infringed his constitutional right to make an effective representation against his detention, as guaranteed under Article 22(5) of the Constitution of India.
In examining these arguments, the court found that the petitioner, being illiterate and unfamiliar with the languages in which the detention grounds were provided, could not comprehend the reasons for his detention.
The court also highlighted the necessity of the Detaining Authority to ensure that the grounds of detention are communicated in a language understood by the Detenu. The absence of such communication, it was held, vitiated the detention order.
The court referenced several precedents to support its decision. In the case of State of Maharashtra and others vs. Santosh Shankar Acharya, (2000), The Supreme Court had ruled that until the State Government approves a detention order, the detaining authority can amend, vary, or rescind it based on the detenu's representation. Failing to inform the detenu of this right violates their constitutional rights under Article 22(5).
Additionally, the judgment in Chaju Ram vs. State of J&K was cited, where the Supreme Court emphasized that “it is absolutely necessary that when we are dealing with a detenu who cannot read or understand English language or any language at all that the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation.”
The court also referenced Raziya Umar Bakshi vs. Union of India and others, where it was held that the service of grounds in an unknown language without proper explanation or translation is equivalent to not serving the grounds at all, thereby invalidating the detention.
Given these findings, the High Court concluded that the failure to explain the grounds of detention to the petitioner in a language he understood resulted in a significant infraction of his constitutional rights. As a result, the detention order was deemed unsustainable in law and was quashed. The court directed the immediate release of the petitioner, provided he was not required in any other case.
Case Title: Makhan Din V/s UT of J&K and another
Citation: 2024 LiveLaw (JKL) 231
