Preventive Detention: J&K Public Safety Act

Context

The Jammu and Kashmir High Court ordered the release of Jaffar Ahmad Parray, who was detained under the state’s Public Safety Act, 1978 (PSA).

J&K High Court Enforces Rule of Law, Quashes Detention Under Public Safety Act

Preventive Detention of Parray: Parray was placed in preventive detention under orders of the District Magistrate (DM), after the police accused him of being an Over Ground Worker (OGW) for terrorist groups Lashkar-e-Taiba and Hizbul Mujahideen.

Declaration of Parray’s Preventive Detention as Unlawful: The High Court held that Parray’s preventive detention was unlawful and invalidated his detention order.

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Public Safety Act, 1978 (PSA)

Section 8(1)(a): It allows the government to detain individuals to prevent them from “acting in any manner prejudicial to the security of the State or the maintenance of public order. 

• This allows the government to detain individuals who they believe could cause harm in the future, even though they may not have committed any crimes at the time of detention.

Section 8(2): Under this, the DM is empowered to pass an order to detain any person if they are satisfied that the person falls under the condition provided in Section 8(1)(a). 

• The Magistrate must then report the detention order to the government for approval, without which the order will lapse after twelve days. However, it is rare for such approval not to be granted.

Section 10-A: It  states that detention orders cannot be deemed invalid “merely” because the grounds of detention are vague, non-existent, not relevant, not connected with the detained person, or “invalid for any other reasons whatsoever”.

Avenues Available to Persons Detained under the Public Safety Act

Section 13(1): It requires the DM to disclose the grounds for detention to the person detained within five days of issuing the order (although this may be extended to 10 days, in “exceptional circumstances”). 

• It also states that the person detained shall be given “the earliest opportunity” to make a representation against the detention order.

Section 13(2): It states that the DM is not required to disclose facts “which it considers to be against the public interest to disclose.”

Grounds for Quashing the Order by the Court

Detention Grounds of Police Dossier:  Copy of The HC observed that the grounds for detention outlined in Section 8(1)(a) of the act, as documented by the DM, were simply a direct copy of the police dossier. 

• However, this dossier lacked any indication of the petitioner’s involvement in a case registered under any FIR with a Police Station.

Significance of Representation in Preventive Detention Cases: Representation against a preventive detention submitted by a detenu is not meant to be a routine piece of paper for the District Magistrate”.

Demonstration of Application of Mind by DM: He emphasized the necessity for the DM to demonstrate “application of mind” when presented with such a representation. 

• In the present case, the petitioner did not receive assurance that his representation was even explored and was considered by the relevant authority.

Detention Without Criminal Past: He arrived at the conclusion that the police had picked him up and questioned him without filing a criminal case against him or documenting any previous criminal behavior.

Thus, considering the lack of application of mind by the DM and the actions of the police, the root of the petitioner’s preventive detention is illegal and coercive.

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Earlier Instances of Non-application of Mind by the DM

Surinder Singh v. Union Territory of Jammu and Kashmir: In this case, the HC quashed a detention order against an alleged “history-sheeter” (someone who has been implicated in multiple chargesheets in the past). 

• It noted that the detention order “is more or less copy-paste of the dossier” sent by the police to the DM.
• The police dossier failed to mention that the detained person had been acquitted or received bail in most of the past cases against him, it held that the detention order “shows the non-application of mind” of the police and the Magistrate, and quashed the order.

Vijay Kumar v State of J&K (1982):  The DM-issued an order of preventive detention against someone who was already in jail and made no note of that fact in the order. 

• The court held that there must be “compelling reasons” for a detention order, the lack of which “clearly exhibits non-application of mind and would result in invalidation of the order”.

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