Srinagar, Feb 20, KDC: The High Court of Jammu and Kashmir & Ladakh, while quashing the detention order against journalist Majid Hyderi, strongly criticized the government for the “cavalier and casual exercise” of power under the Public Safety Act (PSA). The court ruled that vague and non-specific grounds of detention violate fundamental rights and render the detention orders unsustainable.
Majid Hyderi, 43, a resident of Milat Abad Peerbagh, Srinagar, was booked under the PSA via Detention Order No. DMS/PSA/65/2023, issued by the District Magistrate, Srinagar, on September 16, 2023. The order, based on a police dossier, accused Hyderi of activities prejudicial to public order. He was subsequently taken into custody and lodged in a detention facility.
A single bench of Justice Vinod Chatterji Koul, according to Srinagar-based news-gathering agency Kashmir Dot Com, while setting aside the order, observed that detaining a person under preventive laws like the PSA is an “exercise of executive discretion, seriously infracting the individual’s right under Article 21 of the Constitution.”
The court held that although preventive detention laws are constitutionally and statutorily valid, their use must remain an exception rather than a substitute for general laws of arrest and detention.
In a critical indictment of the executive’s handling of detention cases, the court said: “The exercise of executive discretion of detaining a citizen under the preventive detention laws without justifiable grounds is an act of colourable exercise of executive discretion, making such action violative of Article 21 of the Constitution.” It reiterated that discretionary power cannot be arbitrary, stating, “The power to act in discretion is not a power to act ad arbitrium. It is not a despotic power, nor is it hedged with arbitrariness.”
The bench further held that “vague and non-specific grounds of detention violate the fundamental right to life and personal liberty, as they summarily curtail a citizen’s liberty based on subjective satisfaction of the executive.” It observed that such orders deprive the detenue of the opportunity to provide a meaningful rebuttal, forcing them to counter the allegations with only broad denials such as “it is incorrect” or “it is false.”
Criticizing the reliance on unsubstantiated reports from the authorities without proper verification, the court remarked: “Lack of bonafides may be presumed where the executive act results in deprivation of personal liberty based on vague grounds. Such actions indicate a cavalier or casual exercise of authority to detain a citizen without specific ill will or personal animosity.”
The judgment also pointed out that the administration must justify its conclusions with specific material rather than sweeping generalizations.
“The detaining authority must disclose the reasons for its inference as to why it arrived at the subjective satisfaction that not taking the detenue into preventive detention would result in him continuing with his nefarious acts,” the bench stated, adding that the absence of “specific and authenticated material” does not form a legitimate basis for detention.
Citing previous Supreme Court rulings, the court noted that even under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), a solitary incident may justify detention, but the “subjective satisfaction of the authority is not absolute and neither ought it be unreasonable.”
On procedural lapses in Hyderi’s case, the court found that the authorities had failed to provide clear and specific allegations, relying instead on ambiguous and generalized charges. The judgment held that such an approach “smacks of arbitrariness on the part of the detaining authority, rendering the subjective satisfaction arrived at as violative of Article 14 of the Constitution.”
The court, while quashing the detention order against Hyderi, directed authorities to release him forthwith, “provided he is not required in any other case.” (KDC)
