J&K High Court Quashes Detention Order Against Alleged Jamat-E-Islami Member, Orders ₹5 Lakh Compensation For Violating Right To Personal Liberty

In a scathing judgment penned by Justice Rahul Bharti, the court found "nothing in the name of reasonableness and rationality" in the detention order and imposed a compensation of ₹5 lakh on the authorities for violating Lone's fundamental right to personal liberty.

“..a fit case for this court to exercise its constitutional jurisdiction to extend constitutional remedy for grant of compensation in favour of the petitioner for illegal infringement of his fundamental right to personal liberty…this court holds that a compensation of rupees five lacs would meet the ends of justice”, the bench remarked.

The case stemmed from a series of preventive detention orders issued against Lone, who was accused of being associated with Jamat-e-Islami and engaging in activities prejudicial to the security of the state.

The first detention order, dated March 5, 2019, was quashed by the High Court on July 11, 2019, in response to a writ petition filed by the petitioner. However, within six days of the quashment, Lone was detained again under a second order, dated July 19, 2019. This detention, too, was challenged and subsequently annulled by the High Court on March 3, 2020.

Despite these three judgments, the authorities went ahead and slapped a fourth detention order on Lone in September 2022. The grounds for detention remained the same – his alleged past activities and membership in the banned Jamaat-e-Islami.

After meticulously analysing the grounds of detention the bench observed a lack of reasonableness and rationality and criticized the authorities for disregarding previous judgments quashing preventive detentions and highlighted the absence of fresh factual inputs in the latest detention order.

“Now if three judgments of this Court quashing preventive detention of the petitioner made three times hereto before have not been spared a passing glance…then how can it be claimed by the said three authorities at their respective end that the fourth time preventive detention of the petitioner is an outcome of an open and fair mindset acting upon changed factual scenario”, the court said.

Astounded by the factual matrix of the matter Justice Bharti cited a quote by Laura Miller “The past is a very determined ghost, haunting every chance it gets” and observed suffice to say that preventive detention of the petitioner is afflicted surely with malice in law, if not malice in fact, at the end of the entire chain of the preventive detention proposing, making and confirming authorities.

“The very fact that dossier and the detention order are of same date that is 14/09/2022 is a testament to the fact that case of preventive detention of the petitioner was an outcome of a preconceived mindset and that was to somehow keep chained the petitioner to jail bars even if without any conviction in a criminal case”, the bench remarked.

While lambasting the "preconceived mindset" of the authorities and accusing them of treating the High Court's judgments with disdain Justice Bharti also pointed out that the PSA does not allow detention based on the vague concept of "security of state" – a term used in the detention order.

“In addition the impugned preventive detention order of the petitioner is inherently bad as the purported basis of its passing is related to the security of state whereas the Jammu & Kashmir Public Safety Act, 1978 nowhere provides “Security of State” to be a basis under section 8 of the said Act as a ground for the Govt., and/or Divisional Commissioner/District Magistrate to inflict a preventive detention upon a person”, the bench clarified.

Declaring the fourth preventive detention order as "malicious and illegal," the court ordered the immediate release of the petitioner and awarded compensation of five lakhs for the infringement of his fundamental right to personal liberty.

Case Title: Advocate Ali Mohammad Lone alias Zahid Vs Govt Of J&K

Citation: 2024 LiveLaw (JKL) 97

Mr. Z. A. Qureshi, Sr. Adv. with Ms. Rehana, Adv represented the petitioner, Mr. Zahid Qais Noor, GA appeared for respondents.

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