Mehboob Mufti's Detention Order Based On Subjective Satisfaction Of Detaining Authority Cannot Be A Matter Of Judicial Review: J&K Admin. Tells SC

He submitted that the assertion that the Detenu had been in custody for the past six months, had no access to any form of public speech and expression and therefore there could be no reasons/ material to come to a conclusion that the Detenu may act in any manner which is prejudicial to maintenance of public order is "fallacious".

He said,

"It is usually from prior events showing tendencies or inclinations of a person a decision can be taken by the Detaining Authority regarding the likelihood of the said person, in the future, acting in a manner prejudicial to the maintenance of public order."

The submission has been made in a counter affidavit filed in response to the Habeas Corpus plea filed by Mufti's daughter, Iltija.

Recently, Iltija had filed an application before the Top Court, seeking to include grounds of challenge and additional prayers for challenging the orders of confirmation, dated February 26, 2020 and subsequent extensions, dated May 5, 2020 and July 31, 2020 of the Detention orders impugned in the Habeas Corpus Plea.

Refuting the same, the Magistrate has submitted that an "assertion of the Detenu that merely due to the efflux of time, due to the Detenu being in custody u/s 107 of the Cr.P.C., there exist no material justifying the apprehension of public order being affected, is ex-facie erroneous."

The matter was heard today by a bench of Justices SK Kaul & Hrishikesh Roy who sked Solicitor General to get instructions in the matter.

"How Long This Detention Will Continue?":SC Asks SG To Get Instructions On Plea Challenging Former J&K CM Mehbooba Mufti's Detention

In the main plea, Iltija had contended that the grounds for her mother's detention were vague and stale. Refuting the same, the Magistrate submitted,

"the grounds of detention and the dossier clearly indicate that the there exists a live and proximate link in the events that occurred in the past, the activities of the Detenu and the possibility of such activities being prejudicial to maintenance of public order. It is submitted that it is trite law that the past conduct or antecedent history of a person can appropriately be taken into account in making a detention order."

Iltija had also submitted that one of the reasons cited in the impugned dossier was that Mufti had opposed the abrogation of Article 370 as unconstitutional. This, she asserted, clearly amounted to punishing and preventing "legitimate expression".

The Magistrate however contended that Mufti made multiple statements, which are also in public domain, "clearly inciting violence" in the eventuality of any decision being taken regarding Article 370.

He submitted that the J&K Government had confirmed Mufti's detention after duly following the procedure laid down under the PSA.

He informed the Court that he carefully perused all the incriminating materials against Mufti and after applying his mind thereto, recorded a satisfaction over the necessity to detain her. Subsequently, the detention order, along with the Grounds of Detention and the relevant material thereof were referred to the Advisory Board, consisting of a retired High Court Judge and two Principal District & Sessions Judges, for its opinion, which later confirmed the order.

In this backdrop the Magistrate has submitted that the Court cannot on a review of the grounds for detention, substitute its own opinion for that of the authority.

He relied on the Supreme Court's verdict in State of Maharashtra v. Bhimrao Punjabrao, (2008) 3 SCC 613, where it was held that,

"the matters which have to be considered by the detaining authority are not matters susceptible of objective determination and their determination is, therefore, deliberately and advisedly left by the legislature to the subjective satisfaction of the detaining authority which by reason of its special position, experience and expertise would be best fitted to decide them."

Inter alia, the Magistrate questioned the maintainability of the habeas corpus plea inasmuch as he submitted that the Petitioner had bypassed the effective alternative remedy that is available under the Jammu and Kashmir Public Safety Act, 1978 itself, of filing a representation before the Government.

Further, he submitted that if the Petitioner sought to invoke the writ jurisdiction, she ought to have approached the J&K High Court first, which is fully functional.

Reliance was placed on Union of India v. Paul Manickam, (2003) 8 SCC 342, where it was held:

"It is appropriate that the High Court concerned under whose jurisdiction the order of detention has been passed by the State Government or Union Territory should be approached first. In order to invoke the jurisdiction under Article 32 of the Constitution to approach this Court directly, it has to be shown by the petitioner as to why the High Court has not been approached, could not be approached or it is futile to approach the High Court."

The matter is now listed for hearing on October 15.