SrinagarFundamental rights are meant for protecting the civil liberties of the people and not to put them in jail, the Jammu and Kashmir High Court has said while quashing detention order under Public Safety Act (PSA) against four detainees.
Article 22(3)(b) of the Constitution of India that permits preventive detention, is only an exception to Article 21 (fundamental rights) of the Constitution. An exception is an exception and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people and not to put them in jail for a long period without recourse to a law and without a trial, a single bench of Justice Tashi Rabstan said while quashing detention order under PSA against Showkat Ahmad Bhat son of Mohammad Zaffar Bhat resident of Edipora Bomai in northern Kashmirs Baramulla district. He was booked under the PSA, described as lawless law by amnesty international, by District Magistrate Baramulla on 11 March this year.
It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of three months, or any other period(s), is a punishment of that particular periods imprisonment. What difference is it to the (detainee) whether his imprisonment is called preventive or punitive? Further in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence, the court said, adding, Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the (detainee) is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.
The court also quashed detention order of Javid Ahmad Khan son of Saif-u-din Khan of Saderkote Bala Bandipora, Yawar Muzafar Bhat alias Yawar Tanga son of Muzaffar Ahmad Bhat of Batpora, Sopore and Shakeel Ahmad Bhat son of Mohammad Sultan Bhat of Dogripora of south Kashmirs Pulwama.
The court directed the authorities to release the detainees forthwith, provided they are not required in any other case. It is made clear that if any extension order is passed, same is also quashed, the court added.
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