While according the paramount importance to right to personal liberty which is guaranteed in Article 21 of the Constitution as a fundamental right and striking the right chord at the right time, the Jammu and Kashmir and Ladakh High Court at Srinagar in a most learned, laudable, landmark, logical and latest judgment titled Mian Muzaffar V/s UT of Jammu and Kashmir in HCP No. 281/2024 CM No. 5759/2024 CM No. 4918/2024 CM No. 5248/2024 that was reserved on 26.12.2024 and then finally pronounced on 03.01.2025 has very rightly quashed the preventive detention of Advocate Mian Muzaffar who was detained under the Jammu and Kashmir Public Safety Act, 1978 (PSA) in July 2024 on allegations of spreading secessionist ideologies. It must be also disclosed here that Muzaffar was arrested on intervening night of July 13-14, 2024 although his family was not informed of the reasons why he was arrested at the time of his arrest. What later came to be disclosed was that Muzaffar had been placed under preventive detention.
We need to note that the authorities claimed that Muzaffar became a hardcore secessionist under the influence of his uncle Mian Abdul Qayoom who is a former President of the Jammu and Kashmir High Court Bar Association and is presently in jail after being arrested on allegations that he was involved in 2020 murder of Advocate Babar Qadri and was arrested in June 2024 pertaining to this case! It is noteworthy that the government also claimed that Muzaffar had engaged in anti-national activities such as conducting seminars alongside separatist leaders like Syed Ali Shah Geelani and Yasin Malik to preach secessionist ideologies. In his defence, Muzaffar not only denied these allegations but also preferred the legal route of challenging his preventive detention before the High Court in a petition that was filed through his wife.
It is a no-brainer that the Single Judge Bench comprising of Hon’ble Ms Justice Moksha Khajuria Kazmi after perusing the facts of the case found the government’s allegations ambiguous. It was also pointed out that although the government claimed that Muzaffar had organized seminars to propagate secessionist ideologies, there was no mention of when these seminars were allegedly held. So the High Court very rightly concluded that Muzaffar’s counsel was justified in submitting that the detaining authority had passed the detention order on flimsy grounds by merely citing Muzaffar’s profession as an advocate and his being a close relative of Mian Abdul Qayoom.
What also did not very rightly went unnoticed was that the High Court found merit in the pragmatic argument that Muzaffar’s family was not given sufficient information about the allegations against him to file an effective representation challenging the preventive detention order. So it was but quite palpable that the High Court deemed it fit to quash the detention order! Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Moksha Khajuria Kazmi sets the ball in motion by first and foremost putting forth in para 1 that, This petition has been filed at the instance of the detenue by his wife, thereby, challenging detention order passed by District Magistrate Srinagarrespondent No. 2, bearing No. DMS/PSA/17/2024 dated 13.07.2024, for short impugned order, whereby detenue namely Miyan Muzaffer S/o Miyan Mohammad Yousuf R/o Barzulla Bulbulgagh, Srinagar, has been detained under the provisions of Section 8 of the Jammu & Kashmir Public Safety Act, 1978, hereinafter for short as Act, on the ground that his activities are prejudicial to the maintenance of Security of the State and directed to be lodged at district Jail, Kathua Jammu, where he is undergoing detention.
To put things in perspective, the Bench envisages in para 2 while elaborating on facts that:
The detenue was arrested during the intervening night of 13th/14th of July 2024, by police station, Saddar. Neither the detenue nor his family members were apprised about the reason of his arrest. It was in the morning hours of 14th of July 2024, the detenue was told that he has been detained under provisions of the Act. It is stated that detenue was not provided with the order of detention, grounds of detention or any other relevant documents, on the basis whereof the impugned order was passed by the District Magistrate, Srinagar. Thereafter detenue was taken to District Jail, Kathua, where Superintendent of Jail provided him with a copy of the order of detention and grounds of detention, besides, a copy of communication no. DMS/PSA/Jud/97-1000/2024 dated 13.07.2024, issued by District Magistrate, Srinagar, whereby, the detenue was advised that he may inform the Home department, if he would like to be heard in person by the Advisory Board and also may make a representation against the order of detention, in pursuance to Sub Section (1) of Section 13 of the Act. It was only after the documents were furnished to the detenue, a representation dated 23.07.2024 was sent on 25.07.2024, by the wife of the detenue to the Principal Secretary to Government Home Department through post and by hand to District Magistrate Srinagar.
It is worth noting that the Bench stipulates in para 13 that:
Considering the fact that the detenue has no past criminal history, which has any live or proximate link with the grounds of detention and passing of the impugned order, it gives rise to question of laws as under:
- Whether there is any subjective satisfaction of the detaining authority in passing the impugned order of detention?
- Whether detenue was provided with sufficient material so as to make an effective representation?
It would be profitable to note that the Bench notes in para 17 that:
The Supreme Court in case titled Ameena Begum Vs. State of Telangana reported as (1987) 4 SCC 58, has held the detention order must be based on a reasonable prognosis of the further behaviour of a person based on his past conduct in light of the surrounding circumstances and requisite satisfaction.
Quite significantly, the Bench points out in para 19 that:
The submission of the learned senior counsel with respect to the allegation against the detenue of having organized seminars along with Syed Ali Shah Geelani and Yasin Malik on Human Rights Day being vague and ambiguous is justified as the respondents have nowhere stated as to on which date, month or year such an act was committed by the detenue. The allegation thus is certainly inexplicable, depicting complete non application of mind on the part of the detaining authority. The detenue is not specifically shown to have indulged in subversive or anti-national activities warranting his preventive detention. The learned senior counsel is quite right in submitting that the detaining authority has passed the impugned order on flimsy grounds inasmuch as one of the grounds taken in support of the detention is that the detenue is an advocate by profession and a relative of Mian Abdul Qayoom, Sr. Advocate.
As a corollary, the Bench observes in para 20 that:
From the above it is clear that the acts of the detaining authority are subject to judicial review and the authority is not immune to it ipso facto. The subjective satisfaction is the condition precedent for the exercise of power conferred on the executive and the constitutional Court can always examine whether the requisite satisfaction is arrived at by the authority, if it has not, the exercise of power would be bad. In this case the detaining authority has not based the impugned order on its subjective satisfaction; in reaching to the requisite satisfaction. The detaining authority has not applied its mind to the relevant circumstances, the detention order is based on material extraneous to the scope and purpose of the statute. The grounds on which the impugned order has been based are not only vague, but illusive also. There is neither any clarity nor any live and proximate link between any past conduct of the detenue, and the imperative need to detain him. The Advisory Board has also not specified effectively the sufficient cause for the detention of the detenue. This question of law is answered in negative.
Most significantly, the Bench encapsulates in para 21 what constitutes the cornerstone of this notable judgment postulating that:
The grounds of detention mean all the basic facts and material which have been taken into account by the Detaining Authority in making the order of detention and on which the order of detention is based, but if the relevant material is not being provided to the detenue then an opportunity of making representation would be rendered illusory. As per the record, the family of the detenue claimed that the circumstances surrounding the detention of the detenue are vague as such they requested vide communication dated 16.07.2024 to the competent authority for providing them with more information about the charges, so that they could make an effective representation, however, nothing is borne out from the record that any further information was provided to the family of the detenue or not.
Briefly stated, the Bench points out in para 22 that:
The Supreme Court in case titled Jaseela Shaji vs. Union of India reported as (2024) 9 SCC 53, while referring to certain earlier decisions of the Court, has held that the failure of the respondents to supply the relevant material to the detenue has been held to be fatal for the detention order.
Most remarkably, it is then propounded in para 23 stating that:
It is clear from the judgements supra that the detenue has to be informed, not only of the inferences of the fact but of all the factual material which have led to the inference of fact. If the detenue is not informed about his right as enshrined in the Constitution, the opportunity granted by the Constitution itself becomes an exercise in futility if not a nullity. The grounds of detention must be self – sufficient and self – explanatory. The detaining authority is under an obligation to furnish all the pertinent and proximate facts and material relied upon in passing the detention order to the detenue. In the instant case the relevant material was not supplied to the family of the detenue or to the detenue even on their request, which was essential for making an effective representation. This question of law thus is also answered in negative.
Resultantly, the Bench holds in para 24 that:
In view of above, this petition is allowed. The impugned detention order No. DMS/PSA/17/2024 dated 13.07.2024, passed by respondent No. 2, is quashed and set aside. The detenue namely Miyan Muzaffar S/o Miyan Mohammad Yousuf R/o Barzulla Bulbulbagh, Srinagar, is directed to be set at liberty forthwith, if not required in any other case.
In conclusion, this most commendable judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Moksha Khajuria Kazmi deserves to be definitely emulated not only in Jammu and Kashmir and Ladakh but all across India in similar such cases. The misuse of preventive detention laws must be caught, checked, combated and then crushed by rejecting the detention order of the State as we see so very commendably in this leading case! No denying or disputing it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
