Srinagar:The High Court of Jammu & Kashmir and Ladakh has reiterated that preventive detention is an exceptional power and cannot override the fundamental right to personal liberty under Articles 21 and 22 unless strict procedural safeguards are followed.
The court made it clear that any detention must be just, fair, and reasonable, and not based on vague or mechanical grounds.
The bench of Justice W S Nargal while disposing of a habaeus corpus petition of 34-years-old Maqsad Ali Kohli of Navarunda, Tehsil Uri, Baramulla, detained under the preventive detention law — Public Safety Act (PSA) — in 2024 observed that vague and general allegations cannot sustain a detention order.
The bench held that unless specific details—such as dates, places, and concrete acts—are provided, the detenue is deprived of the constitutional right to make an effective representation under Article 22(5). In this case, the allegations were found to be broad and unsupported by material particulars, it said.
It emphasized that the detaining authority must apply its independent mind; and found that the detention order passed by the concerned deputy commissioner was merely a copy of the police dossier, showing clear non-application of mind.
It stressed that “subjective satisfaction” cannot be mechanical but must be based on careful and independent assessment of relevant material.
The judgment further highlighted that non-supply of relevant material vitiates detention. The court observed that merely claiming that documents were provided is not enough; the record must show that all relied-upon material was furnished in a meaningful manner so that the detenue can effectively challenge the detention.
A crucial procedural safeguard reinforced by the court was that grounds of detention must be communicated in a language understood by the detenue. Failure to provide translated copies, especially where the detenue is illiterate or unfamiliar with the language used, renders the right to representation illusory, it said.
The court also laid down that there must be a live and proximate link between the alleged activities and the need for detention. Detention based on speculative or stale grounds—such as general apprehensions without concrete evidence—cannot be sustained in law.
Summing up, the court held that any violation of procedural safeguards—howsoever technical—strikes at the root of preventive detention, making it unconstitutional.
On these grounds, the detention order was quashed and the detenue was directed to be released.
Notably, despite finding the detention illegal, the court did not grant any compensation as sought by the detenue, underscoring that relief in such cases primarily lies in restoration of liberty.
