Preventive Detention Must Be Invoked With All Due Care And Circumspection: J&K High Court Quashes Detention Order

The Court emphasized that preventive detention, an extraordinary measure, requires meticulous care and caution as it involves the deprivation of an individual's most cherished rights.

In his ruling on the subject Justice Mohammad Yousuf Wani observed,

“..The arrests in general and the preventive detentions in particular are an exception to the most cherished fundamental right guaranteed under Article 21 of the Constitution of India. The preventive detentions are made on the basis of subjective satisfaction of the detaining authority in relation to an apprehended conduct of the detenu by considering his past activities without being backed by an immediate complaint as in the case of the registration of the FIR and, as such, is a valuable trust in the hands of the trustees”

The case concerned a habeas corpus petition filed by one Sajjad Hussain nephew of Mohd Azam, who was detained under the Jammu & Kashmir Public Safety Act, 1978. The District Magistrate, Rajouri, issued the detention order citing Azam's alleged involvement in activities prejudicial to public order, referencing multiple FIRs registered between 2013 and 2021.

The petitioner challenged the detention on several grounds, including non-disclosure of relevant material, language barriers in understanding the detention order, and procedural lapses. It was also highlighted that four out of the five FIRs cited in the detention order had been closed through compounding before the order was passed.

Court's Observations:

Adjudicating upon the matter Justice Wani made critical observations, addressing the procedural and substantive issues surrounding preventive detention

Commenting on subjective satisfaction and the objective Assessment on part of detaining authority the Court noted that preventive detention is based on the subjective satisfaction of the detaining authority, which necessitates a rigorous application of mind. However, in this case, the court remarked,

“.. the grounds of detention are the ditto and verbatim of the dossier. The two when placed and perused in juxtaposition reveals that the detaining authority has followed the dossier in its entirety even in phraseology to complete the formality. The detaining authority has even repeated the words, “subject” occurring in the dossier in the grounds of detention. Thus, it lends credence to the fact that the impugned detention order is bereft of subjective satisfaction and application of mind of the detaining authority”

The Court highlighted that the last FIR against the detenu was registered in April 2021, almost three years before the detention order. Justice Wani remarked, "There appears to be no live link between the alleged past activities of the detenu and the necessity for his preventive detention in 2024."

Pointing out that the detenu was not provided with all the documents forming the basis of the detention order, had violated his rights under Article 22(5) of the Constitution the court cited various precedents, including the Supreme Court's rulings in Rekha v. State of Tamil Nadu and Francis Coralie Mullin v. Union Territory of Delhi, to stress that procedural safeguards are the essence of liberty. The detaining authority's failure to properly communicate the grounds of detention and consider the detenu's representation rendered the detention unconstitutional, it underscored.

Remarking that procedural lapses, such as delays in considering representations, are a direct affront to the constitutional guarantee of personal liberty Justice Wani reminded authorities that detention orders are not mere administrative formalities but require the highest degree of fairness and accountability.

Observing that the detaining authority has failed to apply its independent mind to the case at hand and also breached the mandatory provisions of Article 22 (5) of the Constitution the Court quashed the detention order against Mohd. Azam, terming it illegal and unjustified.

It further directed his immediate release in the instant matter.

Case Title: Mohd Azam Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 315

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