The Jammu and Kashmir High Court has ruled that preventive detention is undemocratic and violates the fundamental principle of Criminal Jurisprudence.
“Preventive detention is undemocratic and repugnant to rule of law. It violates fundamental principle of Criminal Jurisprudence providing for presumption of innocence of accused till he is proved guilty on a fair and transparent trial. It not only runs contrary to Constitutional ethos but also bruises the Gandhian thought, that forms weft and warp of our socio-political fabric,” a bench of Justice Hasnain Massodi ruled.
The bench made these observations in a Judgment quashing detention order under Public Safety Act against Muslim League Chairman Masarat Aalam Bhat.
“Bengal Regulation-III of 1818 (Bengal State Prisoners Regulation, Ill of 1818) possibly first detention law and Defence of India Act 1939 as also Defence of India Rules made thereunder, should not have seen reincarnation after dawn of independence as such laws were not in tune with Constitutional values embedded in Chapter III of the Constitution,” the court said.
It added, “It is pertinent to note that Constitution does not directly provide for preventive detention but leaves room for a law providing for such detention. The purpose is that such a law is enacted, it goes through legislative filtration and ever effort is made to make it as far as possible fair, just and reasonable for detenue held in custody without trial and at least safeguards guaranteed under Article 22 get reflected in such law.”
“It is, therefore, necessary that whenever detention order is made, the Court, called upon to examine it, is alive to fact that step taken by Detaining Authority is an extraordinary step curtailing liberty of detenue and therefore, is to pass strict test of total conformity with Constitutional and Statutory mandate,” the court held.
Though J&K Public Safety Act, 1978, the court said, does not forbid or close option for a second detention order, after first outlives its life, yet Constitutional scheme as well as Act mandate that repeated and successive detention orders are not to be passed against detenue, in effect, placing him under detention for a period much beyond permissible under law.
“To discourage repeated detention orders — one after another, it has been held that second detention order can be passed only on fresh grounds and that such grounds must not point to omissions or commission alleged against detenue while in detention,” the court observed.
“In present case, detenue, as stated by respondents in their reply, is accused in as many as 27 criminal cases, registered in different police stations under investigation or pending before various courts. Respondents, instead of taking effective steps to conclude investigation and to prosecute criminal cases pending against detenue and to oppose grant of bail or even seek cancellation of bail wherever necessary, have resorted to his detention under the Act,” it said.
Observing that the respondents have slapped 19 detention orders on detenue during last two and half decades, the court held that “in other words, detenue has suffered detention for most of last 25 years with brief intervals”.
“Such recourse is repugnant to spirit and mandate of Articles 21 and 22 of the Constitution. The Act has been operated against detenue in an unfair, unjust and unreasonable manner, not in tune with fundamental right to life and personal liberty of detenue and therefore is to pass strict test of total conformity with Constitutional and Statutory mandate,” the court said.
It is a well settled law, the court said, that once detention order is quashed, the grounds in support of such order lose all significance and cannot be used to pass fresh detention order.
“It needs no emphasis that preventive detention is an extraordinary measure meant for extraordinary situations and that law enforcing agencies are to have recourse to preventive detention only in case an effort to resist grant of bail to accused fails or there is a strong suspicion that the accused may be let off on bail,” the court observed.
In the present case, the court said, the detenue was in police custody on the date the impugned order was made and respondents without waiting for outcome of the application fell back upon section 8 of the Act.
On April 17 this year Bhat was booked under PSA and shifted to Kot Bhalwal jail after his release by the new PDP-BJP government in Jammu and Kashmir had triggered a controversy. Bhat was released in March this year after his detention of over four years under PSA.
He was, however, arrested on charges of waging war against the country and sedition after he allegedly raised anti-national slogans during a rally organised for Hurriat Conference (G) chairman Syed Ali Geelani. Pakistani flags were allegedly hoisted in the rally.
The 45-year-old leader was remanded to seven-day police custody after his arrest.
Police had registered cases against Bhat, Geelani and several other separatist leaders under Sections 121-A (waging war against the country), 124 (sedition), 120-B (criminal conspiracy), 147 (rioting) of Ranbir Penal Code, among others.
