Preventive detention must be exception to general laws of arrest, detention: High Court

Srinagar, Dec 17: The High Court of J&K and Ladakh Tuesday held that the exercise of jurisdiction under laws of preventive detention must be an exception to the general laws of arrest and detention.

A division Bench of Justice Atul Sreedharan and Justice Muhammad Yousuf Wani while allowing an appeal by a detainee, Imran Rashid Rather of Khurhama, Budgam, against Single Bench’s verdict earlier said: “Detaining a person under the provisions of the PSA is an exercise of executive discretion, seriously infracting the individual’s right under article 21 of the constitution.”

The bench underscored that though constitutionally and statutorily valid, the exercise of jurisdiction under laws of preventive detention should be an exception to the general laws of arrest and detention.

The Single Bench of the court on May 21 this year dismissed Rather’s plea against detention passed by the District Magistrate under the Public Safety Act (PSA) on November 22, 2022.

“The exercise of executive discretion of detaining a citizen under the preventive detention laws without justifiable grounds is an act of colourable exercise of executive discretion making such action violative of Article 21 of the constitution,” the Division Bench said.

The bench held that the vague and non-specific grounds of detention violate the fundamental right to life and personal liberty of the detainee under Article 21 of the constitution as it summarily curtails the liberty of the citizen based on the subjective satisfaction of the executive which is an exceptional power as against the general law relating to arrest and detention.

The bench said that it also deprives the detainee of giving a specific rebuttal to the grounds of detention which might satisfy the detaining authority or the government that his detention is unlawful and compels him to answer the grounds of detention as “it is incorrect” or “it is false”.

The bench said that vague and generalised grounds in the order of detention smacks of arbitrariness on the part of the detaining authority rendering the subjective satisfaction arrived at as violative of Article 14 of the constitution.

The court said that vague and non-specific grounds raise the impression that it has been done deliberately in order to deprive the detainee of giving a precise rebuttal.

Subsequently, it set aside the detention order.

“If the period of detention has expired, the appellant (Rather) shall be set forth at liberty from the date on which this order is pronounced in open court and the continued incarceration of the appellant for even a day thereafter, would be illegal detention for which there shall be consequences to be suffered by the respondents (authorities),” the court said.