J&K HC Upholds Detention Of Bar Association President Under Public Safety Act [Read Judgment]

The Jammu and Kashmir High Court on Friday dismissed a habeas corpus petition which challenged the preventive detention of Senior Advocate and J&K High Court Bar Association President Mian Abdul Qayoom.

He has been under detention since August 5, when the Central Government took measures to abrogate the special status of J&K under Article 370 of the Constitution of India.

Justice Tashi Rabstan, who decided the plea, held that there were sufficient materials to show the subjective satisfaction of the authorities with regard to the need to detain Qayoom, and added that the same was carried out following the procedure under the J&K Public Safety Act 1978.

The Court observed that preventive detention is based on "suspicion or anticipation and not on proof". The responsibility for security of State, or maintenance of public order, or essentials ervices and supplies, rests on the Executive and it must, therefore, have necessary powers to order preventive detention.

Stating that there was limited scope under Article 226 of the Constitution to review a detaining order, the judgment observed :

"...subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court. A Court is not a proper forum to scrutinise the merits of administrative decision to detain a person. The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not". 

The detention was challenged on the ground that the order was passed by the District Magistrate without proper application of mind. It was further contended that the grounds of detention were "vague, indefinite, uncertain, and baseless as also ambiguous and lack in material particulars and essential details". Therefore, the detenue was deprived of his right to make an effective representation against the detention order, the plea contended.

Senior Advocate Z A Shah, appearing for the petitioner, submitted that the detention order mentioned activities of 2008 and 2010, for which he was detained in 2010 itself. Those materials cannot be cited to repeat a detention order.

The administration claimed that the detenu was a "staunch advocate of secessionist ideology" with a history of "instigating general public for indulging in activities prejudicial to maintenance of public order".

While deciding the plea, Justice Rabstan quoted Greek thinker Sophocles to say: "Law can never be enforced unless fear supports them".

"Every right-thinking citizen is duty bound to show esteem to law for having an orderly, civilized and peaceful society. It has to be kept in mind that law is antagonistic to any type of disarray", the judge commented.

The Court observed that the Advisory Board had communicated the grounds of detention to Qayoom and informed him about his right to make representation against the same.

However, no representation has been made by detenu and, therefore, there is no rebuttal to the grounds of detention formulated by detaining authority, the Court said.

Referring to various SC precedents, the Court said that it cannot go into the question whether on the merits the detaining authority was justified to make the order of detention or to continue it, as if sitting on appeal.

"Thus, this Court cannot interfere on the ground that in view of the fact that times have changed, further detention would be unjustified. That is for the Government and the Advisory Board to consider".

The Court held that that grounds of detention are "definite, proximate and free from any ambiguity". Even a single act is sufficient to justify preventive detention.

"In such circumstances, suffice it is to say that there had been material before detaining authority to come to conclusion and hence, it cannot be said that subjective satisfaction of detaining authority was wrongly arrived at or grounds of detention are self-contradictory or vague. The role of detenu has been specifically described."

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