Srinagar- The exercise of jurisdiction under laws of preventive detention must be an exception to the general laws of arrest and detention, the High Court of J&K and Ladakh said on Tuesday as it overturned its single’ bench verdict which had upheld an order under PSA against a resident from Budgam in May this year.
“Detaining a person under the provisions of the PSA is an exercise of executive discretion, seriously infracting the individual’s right under article 21 of the constitution,” a Division Bench of Justice Atul Sreedharan and Justice Mohd Yousuf Wani while allowing an appeal filed by Imran Rashid Rather of Khurhama Budgam against verdict of court’s single bench on 21 May this year dismissing his plea against detention passed by the central Kashmir’s district magistrate under Public Safety Act(PSA) on 22 November 2022.
“Though constitutionally and statutorily valid, the exercise of jurisdiction under laws of preventive detention must be an exception to the general laws of arrest and detention,” the Division Bench underlined.
The exercise of executive discretion of detaining a citizen under the preventive detention laws without justifiable grounds, the court said, is an act of “colourable exercise of executive discretion making such action violative of article 21 of the constitution”.
The court also held that vague and non-specific grounds of detention firstly violates the fundamental right to life and personal liberty of the detainee under article 21 of the constitution as it summarily curtails the liberty of the citizen based on the subjective satisfaction of the executive which is an exceptional power as against the general law relating to arrest and detention.
Secondly, the court said, it deprives the detainee of giving a specific rebuttal to the grounds of detention which may satisfy the detaining authority or the Government that his detention is unlawful and compels him to answer the grounds of detention as “it is incorrect” or “it is false” etc.
Thirdly, the court said, vague and generalised grounds in the order of detention, smacks of arbitrariness on the part of the detaining authority rendering the subjective satisfaction arrived at as violative of article 14 of the constitution.
Fourthly, the court said, vague and non-specific grounds raise the impression that the same has been done deliberately in order to deprive the detainee of giving a precise rebuttal.
Subsequently, the court set aside the detention order. “If the period of detention has expired, the appellant (Imran Rashid Rather) shall be set forth at liberty from the date on which this order is pronounced in open court and the continued incarceration of the appellant for even a day thereafter, would be illegal detention for which there shall be consequences to be suffered by the Respondents (authorities).
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