Detaining authority's subjective satisfaction not open to objective assessment by Court: HC dismisses plea against PSA detention of J&K Bar Association President
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Detaining authority's subjective satisfaction not open to objective assessment by Court: HC dismisses plea against PSA detention of J&K Bar Association President

"A Court is not a proper forum to scrutinise the merits of administrative decision to detain a person. The Court cannot substitute its own satisfaction for that of the authority concerned", the High Court said.

Meera Emmanuel

The Jammu and Kashmir High Court on Friday dismissed a plea challenging the detention of Mian Abdul Qayoom, the President of J&K High Court Bar Association under the J&K Public Safety Act (PSA), 1978.

Justice Tashi Rabstan rejected the writ petition on the ground that the State had followed the procedure laid down for the preventive detention of Qayoom under the PSA.

That being the case, Justice Rabstan opined that the High Court could not sit in appeal over the subjective satisfaction arrived by by the Advisory Board that there were grounds to detain Qayoom under the PSA, to prevent him from acting to disrupt public order.

… subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court.
Jammu & Kashmir High Court

The Court observed,

“A Court is not a proper forum to scrutinise the merits of administrative decision to detain a person. The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not."

Further, the Court commented that it "does not sit in appeal over decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant." Rather, the judge said,

"This Court can only examine grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent detenue from engaging in activities prejudicial to security of the State or maintenance of public order."

Jammu & Kashmir High Court

Before parting with the matter, the Court was also prompted to emphasise that,

  • A law of preventive detention is not invalid because it prescribed no objective standard for ordering preventive detention, and leaves the matter to subjective satisfaction of the Executive.

  • Preventive detention is not punitive but preventive. It is resorted to with a view to prevent a person from committing activities regarded as prejudicial to certain objects that the law of preventive detention seeks to prescribe.

  • Preventive detention is, thus, based on suspicion or anticipation and not on proof.

  • The responsibility for security of State, or maintenance of public order, or essential services and supplies, rests on the Executive and it must, therefore, have necessary powers to order preventive detention.

Procedure under PSA followed before detention, HC told

Inter alia, it had been submitted for Qayoom by Senior Advocate ZA Shah and Advocate Manzoor A Dar that he had not been informed of the grounds for his detention. Further, it was argued that the grounds cited to justify the preventive detention were vague and baseless.

In the absence of having been informed of the reasons for his detention, the counsel also told the Court that the detenue was unable to make an effective representation against his detention to the appropriate authority.

Qayoom was placed under preventive detention in August last year. His detention under the J&K PSA was made around when Article 370 of the Constitution, which had earlier conferred special autonomy to Jammu and Kashmir, was abrogated by the Central Government.

The State told the Court that his detention was triggered keeping in view that the detenue has emerged as a staunch advocate of the secessionist ideology as far as Jammu and Kashmir was concerned.

It was submitted that he has been involving in sponsoring sponsoring strikes and instigating general public for indulging in activities prejudicial to maintenance of public order. Additional Advocates General BA Dar and Shah Amir, along with Additional Solicitor General TM Shamsi appeared for the State authorities.

The Court, in turn, did not find merit in the contention that Qayoom had not been informed of the grounds of his detention and that the grounds cited to justify his detention were vague and baseless. Relying on records produced by the State, the judge observed,

Detenue has been informed with sufficient clarity what actually weighed with Detaining Authority while passing detention order. Detaining Authority has narrated facts and figures that made it to exercise its powers under Section 8 of the Act of 1978, and record subjective satisfaction that detenue was required to be placed under preventive detention in order to prevent him from acting in any manner prejudicial to the maintenance of peace and public order…."

Rather, the Court found that the detenue had failed to make a timely representation against his detention.

“… it has been shown that detenu had opportunity, which the law contemplates in his favour, for making an effective representation against his detention. He, however, did not avail of said opportunity.”

The Court proceeded to rule in the State’s favour, opining that it cannot interfere into the merits of the grounds cited by the Government for the preventive detention, once the procedure under PSA has been followed.

“… it is settled law that this Court in the proceedings under Article 226 of the Constitution has limited scope to scrutinizing whether detention order has been passed on the material placed before it, it cannot go further and examine sufficiency of material.”

With these, among other, observations, the Court dismissed the petition as being devoid of any merit.

[Read the Judgment]

J&K HC Judgment- PSA Detention of Mian Abdul Qayoom.pdf
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