The Jammu and Kashmir High Court has observed that preventive detention laws like Public Safety Act (PSA) have to be used very rarely and only to deal with extraordinary situations.
The 20-page judgment was delivered by Justice Hasnain Masoodi while allowing a habeas corpus petition, which challenged the second consecutive detention of Hizbul Mujhideen founder Mohammad Ahsan Dar under PSA.
The court equated preventive detention law with an unconventional weapon in army's arsenal and observed that such law should be used very rarely to meet an extraordinary situation.
"Again preventive detention is not a solution in itself. It is an extraordinary response to an extraordinary situation. It is a short term measure and a person cannot be put under preventive detention endlessly or for a prolonged period of time," he said.
It is precisely for this reason that the legislature has fixed a cap on the maximum period a person can be placed under preventive detention, Justice Masoodi said his order delivered earlier this month.
While quashing the detention order passed against Dar, the judge observed that the district magistrate, Bandipora, while ordering detention of the detenue for a period of one year has not only closed doors for the detenue to make a representation against his detention but also violated mandate of law.
"In terms of J and K Public Safety Act, the maximum period of preventive detention -- where apprehended activities are prejudicial to the security of the state -- is two years and in all other cases such maximum term is one year. Notwithstanding the permissible time limits of preventive detention, it has to go through the screening stages contemplated by section 8 (4) and section 17 J and K PSA".
Observing that the successive detention orders are permissible only on fresh facts and material that arise after the expiry of previous detention order, the judge said, "In the event it becomes inevitable for the law enforcing agency to invoke preventive detention law, the constitutional and statutory safeguards are to be observed in letter and spirit without any failure."
The court said the failure of the detaining authority to supply the material relied at the time of making the detention order, renders the detention illegal and unsustainable.
Dar was arrested by police on January 14, 2009 and booked under PSA. The order was quashed on November 11,2009 but Dar was not released and PSA was invoked for the second time against him.
Justice Masoodi said the courts have objected to any attempt to dilute the mandate of Article 22 of the Constitution. "The Apex court and high courts have lost no opportunity to insist on strict observance of constitutional and statutory safeguards."
"The jurisdiction conferred on the government and its officers under a prevention detention law is aptly described as 'jurisdiction of suspicion'. The preventive detention unlike punitive detention or detention/custody pending trial is based on mere suspicion nursed by the detaining authority," Justice Masoodi said.
"There is neither any change nor any trial in case of preventive detention. Resultantly, there is no determination of guilt of the detenue before the detainee is placed under detention," the judge said.
"The constitutional and statutory safeguards are meaningless unless and until the material on which the detention order is based, is supplied to the detenue," the court said.