PSA like laws can easily lead to arbitrary exercise of authority by Govt: HC
Srinagar, Mar 27: High Court in a significant judgment today said the courts meticulously scrutinize the case of the preventive detention laws and ensure strict adherence to procedural norms against Government overreach.
These observations were made by the Division Bench of Chief Justice N Kotiswar Singh and Justice Wasim Sadiq while allowing an appeal of a detenue whose preventive detention under Public Safety Act was upheld. The bench allowed the appeal of detenue-Athar Mushtaq Khan and quashed his PSA.
Court said the preventive detention laws in India are extraordinary statutes, granting significant power to the State and such laws can easily lead to arbitrary exercise of authority by the Government. “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”, read the judgment.
Court said that any deviation from procedural requirements should favour the detenu and 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,” HC said.
The Court said, 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. 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 bench recorded.
The court on passing the PSA against the detenue-Khan said the proper course of action for the respondent-detaining authority would have been to move an application for cancellation of bail, if any further untoward incident prejudicial to the security of the State were apprehended to take place in their opinion.
“Since, no such application for cancellation of bail had been moved by the respondents, therefore, the non-compliance of the statutory provision of the criminal law vitiates the order of detention”, read the judgment.
The court came to the conclusion that the grounds of detention formulated by the detaining authority, are general allegations against the detenu, with no specific instance/ incident as the record supplied by the respondents does not support their version.
Court said the detention order based on such vague grounds is not sustainable, for the reason that the detaining authority, before passing the order, has not applied its mind to draw subjective satisfaction to order prevention detention of the detenu by curtailing his liberty which is a valuable and cherishable right guaranteed under Article 21 of the Constitution of India.
The District Magistrate, Pulwama, the HC said, has nowhere referred as to, on what factual basis and inputs shared by the Senior Superintendent of Police (SSP), Pulwama, the petitioner-Khan was so projected as Over Ground Worker as also a member of the banned Organization (Hizbul Mujahideen).
“If this goes unquestioned, then the security agencies would be at liberty to implicate any innocent citizen of this country, without their actual involvement into any criminal activity which in itself would be an unfair target on any citizen by the law enforcement agency simply because they are labelled as criminal”, court said.
The court viewed that the grounds of the detention are baseless, ambiguous and vague, without any material being put forth to prove the genuineness of the same. “Detention in preventive custody on the basis of such vague and ambiguous grounds cannot be justified. There is no doubt that preventive detention is largely precautionary and is based on suspicion and the courts are not equipped to investigate into circumstances of suspicion on which such detention order is based”.
“However, the matters to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of surrounding circumstances and other relevant material, is likely to act in a manner subversive to law and order. In the present case no such apprehension is forthcoming from the material on record which would warrant preventive detention of the detenu”, Court recorded.
Agencies
