Specific Instances Verifiable By Statements Of Witnesses Essential To Establish “Subjective Satisfaction” For Issuing Detention Orders: J&K High Court

Such was the finding of Justices Atul Sreedharan and Mohammad Yousuf Wani while setting aside the preventive detention of one Imran Rashid Rather under the Public Safety Act (PSA).

“Vague grounds militate against subjective satisfaction, which is not satisfaction based upon specific acts attributable to the detenue which raise a “reasonable apprehension” in the mind of the detaining authority, that not taking the detenue under preventive detention would have a deleterious effect, either on public order, or on the security of the state”, reasoned Justice Sreedharan authoring the judgement for the bench.

The court accentuated,

“Detaining a person under the provisions of the PSA is an exercise of executive discretion, seriously infracting the individual's right under article 21 of the constitution. Though constitutionally and statutorily valid, the exercise of jurisdiction under laws of preventive detention must be an exception to the general laws of arrest and detention”.

Rather, a resident of Budgam was arrested in November 2022 and detained under the PSA. Earlier, he had been implicated in a 2020 FIR under sections of the Unlawful Activities (Prevention) Act and the Indian Arms Act, for which he had been granted bail. Despite no new allegations surfacing post-2020, a detention order was issued by the District Magistrate, Budgam, allegedly based on vague and unsubstantiated grounds.

Rather challenged this order, arguing it lacked specificity and coherence, depriving him of an opportunity for precise rebuttal. The Single Judge Bench had earlier dismissed his habeas corpus plea, prompting this Letters Patent Appeal.

After hearing the arguments the court meticulously analyzed the grounds of detention and reiterated that subjective satisfaction, a cornerstone for preventive detention, must be grounded in verifiable facts. The court noted that the detaining authority's reliance on vague allegations, such as Rather's alleged involvement as an over-ground worker (OGW) for the Lashkar-e-Taiba, lacked specific instances or corroborative material.

The Court remarked that without concrete evidence, the satisfaction of the detaining authority is “influenced by prejudice or unsubstantiated apprehension” rather than being genuinely subjective.

The Court elucidated that detention orders cannot be based on unsubstantiated apprehensions or prejudice. Subjective satisfaction must be grounded in facts that reasonably connect the detainee to the alleged activities, enabling the detainee to offer a precise rebuttal. Without such details, the detention order becomes a violation of constitutional protections, it maintained.

Analyzing the eight grounds of detention, the Court found them repetitive, vague, and lacking substantiation as the allegations of providing logistical support to terrorists and motivating youth to engage in anti-national activities were devoid of specific instances or names of individuals. Similarly, the court found the claim of deep links with terrorist outfits was unaccompanied by any evidence.

The Court noted that reliance on generalized and unverified allegations deprived Rather of the opportunity to present a meaningful defense. Such vagueness, it held, undermines the fundamental right to life and liberty under Article 21 of the Constitution and violates the principle of equal protection under Article 14.

Justice Sreedharan reiterated that preventive detention laws like the PSA are extraordinary measures meant to be used sparingly. The Court cautioned against their misuse as tools of arbitrary executive action, emphasizing that detention must follow a rigorous assessment of evidence.

“The Supreme Court has in held in several cases that the power to act in discretion is not a power to act “ad-arbitarium” and that such power to exercise jurisdiction is not a “despotic power” nor is it “hedged with arbitrariness” and when the discretion is exercised mala fide, it gets vitiated by colourable exercise of power”, the bench remarked.

In the instant case the Court noted that the detention order in this case reflected a cavalier approach as the detaining authority had mechanically adopted the police dossier without critically evaluating its contents or demanding corroborative evidence. This lack of diligence and independent application of mind, the Court observed, constituted a colorable exercise of power, violating constitutional guarantees, it underscored.

Setting aside the detention order, the High Court ordered the immediate release of Rather if he was still under custody. The Court warned that any delay in compliance would amount to illegal detention, warranting consequences for the authorities involved.

Case Title: Imran Rashid Rather Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 351

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