“The invocation of the provisions of the PSA to detain the petitioner rather than to pursue the prosecution against him appears to be an unjustified exercise tantamounting to violation of the fundamental rights of the detenu,” observed a single bench of Justice Mohd Yousuf Wani in an 88-page judgment delivered today.
The Court ordered Malik’s immediate release from District Jail, Kathua, where he had been held since September 8, 2025, under detention order No. PSA 05/2025. The detention order was signed by Harvinder Singh, who was then District Magistrate, Doda. Singh was transferred from Doda in February 2026 and currently serves as Director of Employment, Jammu & Kashmir.
The Court invoked the three concentric circles framework originally articulated by the Supreme Court in Ram Manohar Lohia v. State of Bihar (1966):
“Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.”
Applying that test to Malik’s case, the Court found that the 18 FIRs and 16 DDRs cited by the detaining authority — ranging from alleged code of conduct violations to protests over shifting a Primary Health Centre — did not disturb what the Supreme Court has called the “even tempo of the life of the community.”
“When two drunkards quarrel and fight there is disorder but not public disorder. They can be detained under law and order powers but cannot be detained on the ground that they were disturbing public order,” the Court quoted with approval.
The Court noted the petitioner’s argument that Harvinder Singh — who passed the detention order — was himself a party to the dispute that triggered Malik’s alleged outburst.
Malik had been opposing the shifting of a Health Centre at Kencha. When the administration went ahead, Malik went live on Facebook, expressed annoyance, and was later accused of forcibly seizing medical equipment.
“The District Magistrate by passing the impugned detention order has acted as a judge in his own cause,” the petition had argued.
While the Court stopped short of a definitive finding of mala fides, it noted that the DDRs revealing the petitioner “allegedly abusing and disrespecting the District Magistrate through social media posts” raised reasonable suspicion about the impartiality of the detaining authority.
“If the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal,” the Court held, citing the Supreme Court’s ruling in Rekha v. State of Tamil Nadu (2011).
The Court noted that out of 18 FIRs against Malik, three had already been compounded or withdrawn by the State, and 14 were pending trial. One FIR — No. 90/2025 — was registered on the very day the police dossier was submitted.
“The respondents chose to keep the petitioner under preventive detention by way of a shortcut to relieve themselves of pursuing the criminal cases,” the Court observed, adding that “when a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinizing the validity of an order of preventive detention.”
The judgment flagged a procedural lapse that would alone have been sufficient to quash the detention: the detaining authority admitted relying on video clips showing Malik making provocative speeches, including alleged glorification of militants Burhan Wani and Masood Azhar, but never furnished copies of those videos to the detenu.
During the proceedings, the respondents sought the Court’s permission to play the videos in open court — an unusual request that effectively conceded non-supply.
“The videos referred to in the grounds of detention were not furnished to the petitioner at the time of his detention, and as a result he has been prevented from including allegations made on the basis of such videos in his representation,” the Court held.
The Court viewed some videos in chambers with consent of both sides but declined to rely on them for upholding the detention.
The Court found that the earliest FIR against Malik dated back to 2014 — over a decade before the detention order.
“The proximity is not only to be measured in terms of the time gap but firstly in terms of the ground for detention,” Justice Wani held, emphasizing that “irrespective of the proximity or live link in terms of time gap between the alleged last incident of 06.09.2025 and the necessity for passing of the impugned detention order, the alleged activities… which present a law and order situation cannot warrant and justify preventive detention.”
The Court rejected any suggestion that legislators enjoy blanket immunity from preventive detention.
“A member of the legislative assembly has no immunity… if he indulges in prohibited activities,” the judgment notes, citing precedent.
However, the Court held that an elected representative’s protest actions, even if aggressive, do not automatically transmute into public disorder simply because the administration finds them inconvenient.
“Any annoyance or ill-will expressed by public servants against the petitioner, in his capacity as the concerned MLA, cannot amount to public disorder,” Justice Wani observed. “There must be a direct nexus between the act and the public at large.”
The judgment reveals that following Malik’s detention on September 8, 2025, widespread protests erupted across Doda district. Thousands violated prohibitory orders under Section 163 BNSS, blocked roads, and pelted stones.
“Protests by the mob at different locations also led to large scale disruption of traffic and consequent traffic jams which unfortunately led to the death of an infant at Pul Doda due to being stuck and delay in reaching the Associated Hospital of GMC Doda,” the Court noted from the State’s own counter-affidavit.
The State argued that this violence justified preventive detention. The Court did not accept the argument.
On the issue of delayed consideration of Malik’s representation — submitted by his father on September 20, 2025, and decided by the government on October 8, 2025 — the Court held that intervening holidays (including Gandhi Jayanti and weekends) meant no “supine indifference” had been shown.
“Preventive detention laws — an exceptional measure reserved for tackling emergent situations — ought not to have been invoked in this case as a tool for enforcement of law and order,” the Court quoted from Ameena Begum v. State of Telangana (2023).
While quoting Mohinuddin v. District Magistrate, Beed (1987), on habeas corpus petitions, the Court held,
“The rule that a petitioner cannot be permitted to raise grounds not taken in the petition at the hearing cannot be applied to a petition for grant of a writ of habeas corpus. It is enough for the detenu to say that he is under wrongful detention.”
“Preventive detention snaps the right of liberty being the most precious human right,” Justice Mohd Yousuf Wani wrote. “The power of the authorities under the preventive detention laws cannot be allowed to be misused for any reasons beyond the scope of the special legislation, which in essence is a permissible exception to the precious fundamental right guaranteed under Article 21 of the Constitution.”
“Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law,” the court said while quoting the Supreme Court’s language in Rekha:
“The petition is allowed and the impugned detention order bearing No. PSA 05 of 2025 dated 08.09.2025 issued by respondent No.2 i.e. District Magistrate, Doda is quashed with direction to the respondents to release the petitioner/detenu forthwith.” (KDC)
