Srinagar, Apr 14: Observing that there should be no "slackness, indifference and callous" attitude in consideration of the representation of the persons who are detained, the High Court of Jammu & Kashmir and Ladakh overturned the detention of seven persons, who were booked under Public Safety Act (PSA).
The court held that it is the bounden duty of the detaining authority or the government to consider the representation of the detenue and pass appropriate orders thereon.
"Article 22(5) of the Constitution of India, casts a legal obligation on the government to consider the detenu’s representation as early as possible," Justice Moksha Khajuria Kazmi said while quashing detention order passed against Zaid Nazir Dar of Yaripora Kulgam.
The court held that any unexplained delay would be breach of constitutional imperative and it would render the continued detention of the detenu as illegal.
"Each day’s delay in dealing with the representation has to be explained and the explanation offered must be reasonably indicating that there was no slackness or indifference," Justice Kazmi observed.
Adding, "I am of the view that non-consideration of the detenu’s representation constitutes violation of the constitutional right guaranteed under Article 22 of the Constitution and also exhibits failure of the Government to discharge its statutory obligation/function. Therefore, for this reason alone, writ petition must succeed."
Allowing separate habeas corpus petitions, the various single judge benches of the court also quashed detention orders of Abrar Hamid Wani of Chadoora Budgam, Faisal Ahmad Mir of Tral Pulwama, Mohammad Yousuf Ganai of Shopian, Bashir Ahmad Sualiah of Baramulla, Imran Qadir of Srinagar and Javaid Ahmad Dar of Redwani Bala Kulgam.
The court ordered their immediate release from their detention, if not needed in any other cases.
In three petitions, it was contended by the petitioners that the representation filed against the detention order has not been considered by the respondents till date.
"Because of non-consideration of the representation, the detention order is liable to be quashed."
The petitioners in few petitions contended that respondents have not followed the constitutional and statutory safeguards inasmuch as the petitioner has not been furnished whole of the material relied upon by the respondents for framing the grounds of detention as a result of which, the petitioner has been hampered in making effective representation against the order of detention.
It was also contended that the grounds of detention are vague, irrelevant and non-existent.
The court after perusing the material on record observed that it was not possible for the petitioner to make effective representation against the order of detention in absence of the whole material.
Thus, the court said, the vital constitutional and statutory safeguards available to the detenue have been infringed which renders the impugned order of detention unsustainable in law.
"It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation against his detention order which is his constitutional right, guaranteed under Article 22(5) of the Constitution of India, unless the material on which the detention is based, is supplied to him in its entirety," the bench said.
The court held that failure on the part of the Detaining Authority to supply the entire material renders the detention order illegal and unsustainable under law.