High Court Rules That A Detention Order Passed Without Making The Detenue Explicitly Aware Of His Right To Make Representation Was Invalid

Case title:

Bashir Ahmed Naik v. Union Territory of Jammu and Kashmir & Ors

Date of Order:

28.03.2024

Bench:

Hon’ble Mr. Justice Sanjay Dhar 

Parties: 

Petitioner: Bashir Ahmed Naik

Respondent:  1. Union Territory of Jammu and Kashmir, through Commissioner/ Secretary to Govt. Home Department Civil Secretariat, Jammu

2. District Magistrate, Ramban

3. Senior Superintendent of Police, Ramban

4. Superintendent, District Jail, Amphalla, Jammu.

SUBJECT:

The Hon’ble High Court of Jammu and Kashmir (hereinafter referred to as the ‘High Court’ or ‘the Court’) dealt with a petition filed by one Bashir Ahmed Baik, who was in preventative detention. The petitioner argued that he was kept from exercising his rights, making the validity of the detention order questionable. The Court held that the detaining authority was bound to communicate the right to make representation to the detenue before it is approved by the government as the detaining authority possesses the authority to revoke the detention order before the approval. The High Court quashed the detention order of the District Magistrate, deeming it violative of constitutional and statutory provisions. 

IMPORTANT PROVISIONS:

The Jammu and Kashmir Public Safety Act, 1978 (PSA):

• Section 8(2): states that a District Magistrate can issue a detention order.
• Section 8(4): states that if a detention order is issued by the District Magistrate, it must be reported to the Government with the grounds on which it was issued.  
• Section 13

The General Clauses Act, 1897 (GCA):

• Section 21

OVERVIEW:

• On 19.05.2023, the Ramban District Magistrate ruled that the petitioner, Bashir Ahmed Naik (the detenue), be kept in preventative custody.
• The petitioner is said to have been kept in custody to keep him from engaging in activities that were deemed prejudicial to public order. 
• The petitioner filed the instant petition before the High Court.

ISSUES RAISED:

• Whether the detention order is valid?

ARGUMENTS ADVANCED BY THE PETITIONER:

• The order passed by the District Magistrate lacks consideration as it is a direct copy of the police dossier without any independent assessment. 
• Petitioner did not understand the grounds for his detention as he had limited education and the grounds were not explained to him in a language he understood. 
• It was submitted that the petitioner was not made aware of his rights, including the right to file a representation against the detention order, resulting in deprivation of effectively contesting the detention. 
• It was argued that the impugned order lacked clarity as the detention authority used the terms ‘public order’ and ‘security of the State’ synonymously, lacking precision.
• The judicial process lacked transparency and there was incomplete disclosure of evidence against the petitioner, undermining the fairness of the judicial process.

 ARGUMENTS ADVANCED BY THE RESPONDENT:

• The counsel on behalf of the respondent submitted that the petitioner has a history of being involved in anti-national activities and was arrested in 1993. His name appears on the list of Over Ground Workers (OGWs), individuals who support militant or separatist activities. 
• It was argued that the petitioner was allegedly in contact with his brother-in-law who crossed over to Pakistan-Occupied Kashmir (PoK) in 1999 and is suspected to be passing information of security forces to terrorists in Pakistan. The daily diary of the Police Post in Khari from 11th- 15th May 2023, suggested the same. 
• Refuting the petitioner’s arguments, it was argued that the grounds of the detention were explained to the petitioner in a language he understood. Moreover, all constitutional and statutory safeguards were adhered to in the issuance of the impugned order. 
• The evidence to support the grounds for detention was already on record.

JUDGEMENT ANALYSIS:

• The High Court noted that contrary to the petitioner’s argument, he was provided with notice of detention by the District Magistrate via communication dated 19.05.2023. 
• In the same communication the petitioner was also made aware of his right to make a representation before the detaining authority. 
• However, it was observed that the petitioner wasn’t specifically informed about his representation rights before the District Magistrate. Therefore, it was held that the petitioner was deprived of his right to representation. 
• As per Sections 8(2) and 8(4) of the PSA, the District Magistrate has the power to issue a detention order which must then be approved by the government within 12 days to maintain validity of the order. 
• Furthermore, under the provisions of Section 21 of the GCA, the District Magistrate has the power to issue a detention order as well as the power to amend, vary, and/or revoke it until it receives government approval. 
• The impugned order was approved by the government on 25.05.2023. The District Magistrate had the authority to revoke the order from 19.05.2023 to 25.05.2023. 
• It was noted by the Court that during this period, the petitioner was not informed about his right to make a representation before the District Magistrate himself, despite the communication addressed to him expressing said rights.
• Hence, it was held that the petitioner was deprived of his right to make a representation before the detaining authority during the time the District Magistrate still had the power to revoke its order. 
• This procedural irregularity was considered to have an impact on the validity of the detention order. 
• In the case of Tariq Ahmad v. State of J&K and Ors, the Division Bench held that keeping information from the detenue that he has the right to make representation until the detention order is approved by the government, constitutes a violation of Article 22(5) of the Constitution of India and Section 13 of PSA. Such lack of communication by the detaining authority would also render the order invalid.
• The High Court opined that failure to make the detenue aware of his representation rights would be considered an infringement of Constitutional and Statutory rights.
• The detention order was subsequently quashed. 

CONCLUSION:

The High Court allowed the petition on the grounds that the detaining authority had violated the Constitutional and Statutory rights of the petitioner. It was held that the petitioner was deprived of his right to make representation as a result of the lack of communication during the appropriate time. This deprivation renders the impugned detention invalid. Accordingly, the petitioner was released from preventative custody.