Srinagar, Jan 17: The High Court of Jammu & Kashmir and Ladakh recently overturned five Public Safety Act (PSA) detention orders while observing that the grounds of detention were “vague, cryptic, irrelevant and non-existent”.
The court while overturning the detentions held that detention in preventive custody on the basis of such “vague and ambiguous” grounds cannot be “justified.”
The court noted that even if one of the grounds or reasons, which led to the subjective satisfaction of the detaining authority, is non-existent or misconceived or irrelevant, the order of detention would be invalid.
“Where the order of detention is founded on distinct and separate grounds, if any one of the grounds is vague or irrelevant the entire order must fall,” the bench said.
The bench recorded that one irrelevant ground is sufficient to vitiate the order as it is not possible to assess, in what manner and to what extent, that irrelevant ground operated on the mind of the appropriate authority, and contributed to his satisfaction that it was necessary to detain the detenuein order to prevent him from acting in any manner “prejudicial to the maintenance of the public order or security of the State.”
It noted that the grounds, being vague and lacking in material particulars, the detenue could not have made an effective representation against his detention.
“Therefore, there has been violation of constitutional guarantees envisaged under Article 22(5) of the Constitution. The detention order, as such, is illegal and unsustainable,” it said.
The court on this basis quashed the detention orders against Abdul Rashid Malik of Pahalgam Morha of district Anantnag, Mohammad Saleem Mir resident of Shopian, Reyaz Ahmad Sofi of Khudwani, Kulgam, Mohammad Dilawar Khawaja of district Baramulla and Zahid Ahmad Malik of district Pulwama.
Allowing separate habeas corpus petitions, the court asked the government authorities to immediately release the detenues from preventive custody unless they’re not required in any other case.
The court observed that grounds of detention are replicas of dossier with “interplay of some words” here and there.
“This, thus, shows non-application of mind and in the process of deriving subjective satisfaction, has become causality,” the court said.
The bench noted that while formulating grounds of detention, the detaining authority has to apply its own mind. “It cannot simply reiterate whatever is written in the dossier.”
Regarding non-supply of material to the detenues, the court observed that detenue cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K PSA, 1978, unless and until the material on which detention order is based, is supplied to him.
It is only after detenuehas all the said material available that he can make an effort to convince detaining authority and thereafter the government that their apprehensions vis-à-vis his activities are baseless and misplaced, the bench underscored.
“If detenueis not supplied the material, on which the detention order is based, he will not be in a position to make an effective representation against his detention order,” it recorded.
The failure on the part of the detaining authority to supply the material, relied at the time of making the detention order to the detenue renders the detention order illegal and unsustainable, the court said.
