Constitutional court meant to be extra sensitive, proactive: HC

Srinagar, May 30: The High Court of J&K and Ladakh Thursday came down heavily on government and District Magistrates (DMs) for taking it for granted to subject a person to suffer the loss of personal liberty in the name of an order passed under the Public Safety Act (PSA), observing, “as if the exercise of preventive detention jurisdiction is answerable and accountable to no one”.

Twenty-four-year-old Suhail Ahmad Lone from north Kashmir’s Bomai Sopore in Baramulla district had petitioned against his detention with this contention that he had been booked under PSA just after 13 days of his earlier detention of 2021 was quashed by the court.

His plea before the court was whether concerning an unchanged set of facts and circumstances regarding subjective satisfactions of a District Magistrate under the PSA justify two detention orders in succession against the same person, both on different basis of maintenance of public order and security of the State.

“This court is left to wonder that for the selfsame set of circumstances without any iota of change except intervention of 13 days in between from expiry of the first detention order dated November 9, 2021, in terms of order dated November 14, 2022, of this court in terms whereof the petitioner was order to be let off and the passing of the second detention order dated November 28, 2022, how come the very same set of facts and circumstances at the first instance were held to be prejudicial to the maintenance of public order and second time to be prejudicial to the security of the State,” said a judgment by justice Rahul Bharti.

“It is, thus, rendered clear that the so-called subjective satisfaction of the District Magistrate, Baramulla is nothing but a matter of wordplay taking it for granted that District Magistrate as well as the J&K government have omnipotent power and authority to subject any person to suffer preventive detention at any given point of time and for that matter any given District Magistrate or J&K government by appropriating expression of his and its liking in terms of the grounds of detention envisaged under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, can feel free to subject a person to suffer loss of personal liberty in the name of an order passed under Jammu and Kashmir Public Safety Act, 1978, as if exercise of preventive detention jurisdiction is answerable and or accountable to no one,” the judgement said.

The court noted that such a misconception at the end of the District Magistrate, Baramulla needed a reality check that the constitutional courts are the guardians of the guarantees of fundamental rights to the citizens of the country.

“In the event of violation of a fundamental right, in particular that of right to life and personal liberty, a constitutional court is meant not only to be extra sensitive but proactive in immediately curbing the situation which is generating the violation of said fundamental right to life and personal liberty,” it said.

Lone in his plea had challenged the detention order dated November 28, 2022, passed by District Magistrate, Baramulla thereby subjecting him to suffer preventive detention by “purportedly holding his activities prejudicial to the security of the State warranting curtailment of his fundamental right to personal liberty otherwise guaranteed under Article 21 of the Constitution of India”.

Before dealing with the detention order against Lone, the court made a reference to an earlier detention order passed against him by the same District Magistrate acting at the instance of the same very District Police, Sopore.

The court observed that the Superintendent of Police (SP), Sopore, had forwarded a dossier vide a letter dated November 5, 2021, thereby seeking preventive detention of Mir by referring to his alleged involvement in FIR No 109 of 2021, FIR No 163 of 2021 and FIR No 196 of 2021, all three registered by the Police Station, Sopore.

The court said that this dossier had resulted in passing of a detention order dated November 11, 2021, by the DM Baramulla on the ground that Mir’s alleged reported activities were prejudicial to the “maintenance of public order of the State” and, therefore, he came to be detained and subjected to suffer detainment in the Central Jail Kot Bhalwal, Jammu for one year meaning the maximum period prescribed for detention under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, relatable to the ground of maintenance of public order.

The first time preventive detention order dated November 9, 2021, against Mir, took place in the wake of his arrest on November 2, 2021, in connection with the FIR No 196 of 2021 dated July 23, 2021, registered by the Police Station Sopore in which he figured as one of the named accused persons.

Mir challenged the detention by filing a writ petition before the court on March 31, 2022, and the same had remained pending and outlasted a year of detention inflicted upon him as a result whereof the petition was rendered infructuous.

It was disposed of accordingly in terms of an order dated November 14, 2022, whereby the court called upon the detaining authority to release Mir in case he was not required in any other case.

In his plea, Mir alleged that without earning any release upon expiry of the detention period in terms of the detention order dated November 9, 2021, and direction by the court in terms of its order dated November 14, 2022, he was retained in illegal custody and just after 13 days again came to be subjected to suffer next round of preventive detention in terms of the detention dated November 28, 2022, on the purported ground that his activities were reckoned to be prejudicial to the security of the State.

While the petitioner was already lodged at Central Jail Kot Bhalwal, Jammu, in a state of illegal confinement, the second detention order came to be executed upon him by showing its date of execution to be December 1, 2022.

The court underscored that this second detention was ordered by the District Magistrate, Baramulla, purportedly acting upon a dossier forwarded by the Senior Superintendent of Police (SSP), Sopore, vide a letter dated November 25, 2022, which was nothing but a repeat of the earlier dossier served by the SSP Sopore based on which the first detention order dated November 9, 2021, was issued.

Guided and led by the dossier dated November 25, 2022, the District Magistrate, Baramulla came to formulate purported grounds of detention against Mir to draw purported subjective satisfaction and passed the detention order dated November 28, 2022.

The preventive detention of Mir in terms of an order dated December 26, 2022, was declared confirmed by the government and he was ordered to be detained outside J&K in the District Jail Bareilly, Uttar Pradesh (UP).

The present writ petition was filed by Mir on December 28, 2022, and it was after the institution of this petition that Mir’s detention was further extended following the government order dated May 16, 2023.

It was in the aforesaid state of facts and circumstances that the petitioner is challenging his preventive detention as being illegal and unwarranted carried out on the frivolous exercise of discretion at the end of the District Magistrate, Baramulla.

Subsequently, the court quashed the detention order of Mir and directed the Superintendent of the concerned jail as well as the District Magistrate, Baramulla, to ensure that he was released from the jail at the earliest.