Preventive detention laws can easily lead to arbitrary exercise of authority: HC

Srinagar, March 28: The High Court of J&K and Ladakh has held that preventive detention laws can easily lead to arbitrary exercise of authority by the Government. This the court said while quashing detention of a Pulwama resident.

“Preventive detention laws in India are extraordinary statutes, granting significant power to the State. Such laws can easily lead to arbitrary exercise of authority by the Government,” said the division bench of Chief Justice N Kotiswar Singh and Justice Wasim Sadiq Nargal.

The Bench said that there is no doubt that the Courts cannot, on a review of the grounds, substitute its own opinion for that of the detaining authority, and cannot act as a court of appeal, it is solely the domain of the detaining authority to reach to a subjective satisfaction.

“However, this does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial reviewability,” it said. “The courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny.”

The basic postulate on which the courts have proceeded, is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the Executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority, the Division Bench said.

“If it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad.”

There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute, the court said. The simplest case is whether the authority has not applied its mind at all; in such a case the authority could not possibly, it said.

“Therefore, it is imperative for the Courts to meticulously scrutinize cases involving these laws, ensuring strict adherence to procedural norms and safeguarding against governmental overreach,” the court said.

“Any deviation from procedural requirements should favour the detenu. Courts have a constitutional duty to protect individual and civil liberties, which is paramount. This duty not only upholds the rights of individuals and society but also preserves the foundational principles of our Constitution” the court said while allowing setting aside a judgment by its Single Bench dated 22 November 2022.

“Resultantly......the impugned Order of detention bearing No. 24/DMP/PSA/22 dated 12.04.2022 passed by the Respondent-District Magistrate, Pulwama is hereby quashed,” the court said and directed authorities to release the detainee, Athar Mushtaq Khan of Tantraypoa Litter Pulwama, forthwith from the preventive custody, provided he is not required in any other case.