Subjective Satisfaction Under Preventive Detention Jurisdiction Cannot Rule Out Objectivity: J&K HC Quashes Detention Order

A bench of Justice Rahul Bharti has observed,

“If taken as it is, then any law abiding citizen can be stereotyped at the hands of law and enforcement agency/authority for the sake of being put behind the bars not for any penal act of omission and commission on his/her part amounting to violation of law but just for the reason that law and enforcement agency/authority is so profiling a person to be a bad person”.

The case involved Waqas Riyaz Khan, a 26-year-old resident of Srinagar, who filed a writ petition under Article 226 of the Constitution of India. The petitioner sought a writ of habeas corpus to challenge the preventive detention order issued against him under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. The detention order was issued by the District Magistrate, Srinagar, based on a dossier submitted by the Senior Superintendent of Police (SSP), Srinagar, alleging the petitioner's involvement in anti-national activities.

The grounds for preventive detention outlined in the dossier portrayed the petitioner as having a radical ideology inclined towards terrorism, instigating youth, and providing logistics to anti-national elements. The SSP also referenced the petitioner's past involvement in cases related to the 2019 unrest, emphasizing his potential to disturb the peace and tranquility of the region.

However, Justice Bharti found the grounds of detention fact-deficient and lacking any context. He criticized the dossier for presenting a mere opinionated caricature of Khan, devoid of concrete evidence or specific instances to support the accusations.

“The grounds of detention text wise spelled out by the respondent no. 2-District Magistrate, Srinagar lack a context and, therefore, do not and cannot count the basis for generating a subjective satisfaction which is meant to operate to an objective situation in front”, the court said.

Justice Bharti further underscored that while subjective satisfaction is crucial in preventive detention cases, it cannot disregard the necessity of presenting an objective basis before the detention authority.

"It is exercise of subjective satisfaction under preventive detention jurisdiction which is meant to be respected but that does not mean that the said subjective satisfaction can dispense with state of objectivity to be produced before the detention authority to apply its mind and draw a subjective satisfaction for the purpose of subjecting a person to suffer preventive detention," the bench observed.

Based on these observations, the Court quashed Khan's detention order and ordered his immediate release.

Case Title: Waqas Riyaz Khan Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 3