Article 22(5) | Detenue Must Be Conveyed 'Time-Limit' Within Which He Can Make Representation Against Detention: J&K&L High Court

"This is another reason, as to why the impugned order would be vitiated since the detenue's right to make a representation to the detaining authority was only available to him till approval of detention order by the Government, it follows as a logical imperative that the detaining authority should have communicated to the detenue in the grounds of detention the time limit, in which, he could make a representation to it i.e., till the approval of the detention order by the State Government."

Brief Facts:

The District Magistrate, Ramban ('Detaining Authority') in exercise of powers under Section 8 of the Jammu & Kashmir Public Safety Act, 1978 ('the Act'), passed the detention order. As a consequence of the order, a person named Tariq Ahmed was detained. The order has been challenged through the instant petition, for being violative of the provisions of Article 22(5) of the Constitution read with Section 13 of the Act.

Submissions of the Petitioner:

Mr. Muzaffar Iqbal Khan, counsel for the detenue-petitioner made reference to the grounds of the detention and stated that from a 'cursory look' on the same, it is manifest that same are vague. It was also submitted that the petitioner was detained on the basis of dossier submitted by the Superintendent of Police. It was further alleged that the same has been done without application of mind. Without evaluating the allegations against the detenue in the said dossier, copy of which was not even provided to the detenue, the authority proceeded to pass impugned detention order.

It was also contended that the detenue is not an English literate person, who is just 8th pass and understands only Urdu. However, the order of detention was in English and thus, it was not possible for him to understand such a hyper technical language. Further, he argued that the order of detention and the connected documents annexed with the petition clearly show violation of right of the detenue guaranteed in terms of the Article 22(5) of the Constitution of India.

Submissions of the Respondents:

Mr. Eishaan Dadhichi, the Government Advocate contended that there is no vagueness in the grounds of detention. The procedural safeguards prescribed under the provisions of Public Safety Act and the rights guaranteed to the detenue under the Constitution have been strictly followed. He stressed that the detenue has been furnished with all the material, as was required, and was also made aware of his right to make representation to the detaining authority as well as government, against his detention.

It was also stated that the detenue was ordered to be detained for maintenance of 'public order' and had he been let free there would have been every likelihood of his re-indulging in anti-national/anti-social activities and he would have continued to create law and order problem by organizing strikes and anti-national rallies in association with other likeminded people of the area.

Observations and Decision of the Court:

At the outset, the Court iterated that the 'procedural requirements' are the only safeguards available to the detenue since the Court cannot decipher the subjective satisfaction of the detaining authority. Therefore, the procedural requirements are to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. The decision of the Apex Court, in Abdul Latif Abdul Wahab Sheikh v. B.K. Jha & Anr., (1987) 2 SCC 22, was relied upon to hold so.

The Court observed,

"Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty."

Therefore, in a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed.

Then, the Court took notice of the fact that the detenue had not been provided with copies of dossier, FIRs, charge-sheets and statements of witnesses. Thus, he cannot be said to be provided with whole of the record which based his detention, so as to make an effective representation. The detention order also did not indicate with regard to the right of making representation. Therefore, it was held that the failure on the part of the detaining authority to supply material renders detention illegal and unsustainable.

The Court took note of the fact that the Detaining Authority did not communicate to the detenue his right to represent against the order and also the 'time limit' till which he could make a representation, as he was allowed to the same only till approval of the detention order by the Government. The decision of the Allahabad High Court in Jitendra v. Dist. Magistrate, Barabanki & Ors., 2004 Cri.L.J 2967, was relied upon to hold that non-compliance of the above requirement renders the detention order vitiated.

Accordingly, the Court concluded,

"Reproducing the dossier prepared by the Senior Superintendent of Police, Ramban in the order of detention, almost word by word; non furnishing of the whole of the record on which detention order was based; furnishing the material in English and not the language of the detenue; and not informing detenue of his right to make representation before the Detaining Authority or the Government, all reflect that the Detaining Authority has not applied its mind to draw the subjective satisfaction to detain the petitioner and detenue has also been deprived of his fundamental right to make effective and meaningful representation against the detention order to the Detaining Authority and the government." (emphasis supplied)

Consequently, the detention order was quashed and the detenue was directed to be released forthwith.

Case Title: Tariq Ahmed v. Union Territory of J & K & Ors.

Case No.: WP (Crl) No. 45/2021

Judgment Dated: 23 March 2022

Coram: Justice M.A. Chowdhary

Counsel for the Petitioner: Mr. Muzaffar Iqbal Khan, Advocate

Counsel for the Respondents: Mr. Eishaan Dadhichi, Government Advocate

Citation: 2022 LiveLaw (JKL) 13