'State Security' No Longer Valid Ground For Preventive Detention In J&K Since Reorganization As Union Territory: J&K High Court

A bench of Justice Rahul Bharti has clarified,

“.. Under the J&K Reorganization (Adaptation of State Laws) Order, 2020, “Security of the State” obtaining in section 8(1)(a)(i) came to be substituted by the statutory ground of “security of the Union Territory of Jammu & Kashmir”.. therefore, an order so passed with the said expression “Security of the State” being retained as it is, technically disqualifies to be a valid order of preventive detention against a detenue”.

These observations came in a case where a man named Rayees Ahmad Khan challenged his preventive detention under the Jammu and Kashmir Public Safety Act, of 1978.

Khan was detained under the Public Safety Act (PSA) by the Baramulla district magistrate for allegedly being involved in several criminal cases, including kidnapping, theft, housebreaking, and drug trafficking. The detention order cited "security of the State" as a reason for detaining Khan.

Khan, through his wife Farhat Begum, challenged the detention order on the grounds that it was illegal and unconstitutional. It was argued that the concept of "security of the State" no longer exists since Jammu and Kashmir became a Union Territory in 2019 following the J&K Reorganisation Act.

Scrutinising the legality of the detention order, Justice Bharti highlighted that after the abrogation of Article 370 and the reorganization of Jammu and Kashmir into Union Territory in 2019, the phrase "security of the State" had been amended to "security of the Union Territory of Jammu & Kashmir" in relevant laws. Therefore, any reference to "security of the State" in the detention order was found to be procedurally flawed and invalid.

Pointing out this discrepancy in the application of mind by the District Magistrate, Baramulla, and the government of UT of Jammu & Kashmir in approving and confirming the preventive detention without due consideration of the amended legal framework post-2019, Justice Bharti emphasized that preventive detention is a serious deprivation of personal liberty and must strictly adhere to procedural safeguards outlined in the law.

“.. the petitioner was made to understand that he was being detained in order to prevent him from acting in a manner prejudicial to the security of the State obviously meaning State of Jammu & Kashmir. State of Jammu & Kashmir has ceased to be an entity for the Govt. as well as for the citizens of the Union Territory of Jammu & Kashmir and it cannot lie at the disposal of any side to still say and understand that the State of Jammu & Kashmir is in existence for whose safety and security detention order under J&K Public Safety Act, 1978 can be passed”, the court remarked.

The court also noted that the FIRs mentioned in the detention order related to regular criminal offences and did not connect Khan's activities to any security threat. These offences, the court observed, should be dealt with under the normal criminal justice system.

Furthermore, the court criticized the detention order's grounds, calling them "mere hallowed recitals just for sake of statement which by no sense of imagination and inference, can be said to make the petitioner a case for suffering preventive detention”.

In light of these observations, the court ruled that Khan's detention was illegal and ordered his immediate release. The detention order and its subsequent approvals by the government were all quashed.

Case Title: Rayees Ahmad Khan Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 160

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