Liberty at the government’s whim | The Hindu

Context: Recently, Jammu and Kashmir High Court has refused to hear a petition that challenged the detention of the president of the Kashmir Bar Association under Jammu and Kashmir Public Safety Act of 1978 [PSA].

Background: Government has detained the president of the Kashmir Bar Association under Jammu and Kashmir Public Safety Act of 1978 [PSA] after its decision to withdraw Article 370 of the Constitution on 5^th August last year. Despite his worsening health, he continues to be detained for nearly six months.

Argument against preventive detention:

• Arbitrary detention: In Mian Abdul Qayoom v. State of J&K case, the petitioner has presented an argument against his preventive detention before the High Court. In this case, the argument against preventive detention was that his detention under Jammu and Kashmir Public Safety Act in the name of maintenance of public order is indistinct and arbitrary.
• Right to personal liberty: In Maneka Gandhi v. Union of India (1978) case, Supreme Court has ruled that Right to life and personal liberty under Article 21 can be taken away only as per reasonable, just and fair procedure established by law. In its Judgment in Mian Abdul Qayoom v. State of J&K case, J & K High Court has also said that right to personal liberty provided by Article 21 of the Constitution is the most precious right.

The judgment of High Court:  While dismissing the petition challenging preventive detention, the High Court said that right to personal liberty would be meaningless without preventive detention laws and maintenance of order in the society.  The Court talked about the opinion of the Supreme Court in The Secretary to the Government, Public (law and order-F) and another vs Nabila and another (2015) case. In this case, the Supreme Court has said that larger interest of nation should come first if there is a conflict between personal liberty or individual liberty and the security of state or maintenance of public order. In this Judgment, the High Court has cited A.K. Gopalan v. State of Madras case (1950). The court ruled that the decision of detaining authority is not dependent upon consideration and judgment by Courts.

Analysis of the judgment of High Court: While dismissing the petition challenging preventive detention, High Court focused on preventive detention laws and maintenance of order in the society. Usually, the judiciary works according to law and facts of the case. But, in deciding upon the justifiability of the preventive detention of petitioner and dismissing the petition of the petitioner in Mian Abdul Qayoom v. State of J&K case, High Court has not worked according to both law and facts of the case. The fact of the case was that government had detained the petitioner on the basis of FIR against him in 2008 and 2010 and without mentioning any criminal charges against him. The High Court has mentioned about A.K. Gopalan case. In A.K. Gopalan v. State of Madras case (1950) case, Supreme Court has ruled that Right to life and personal liberty is protected against arbitrary executive action. As per the Gopalan case of 1950, Right to life and personal liberty is not protected against arbitrary legislative action. But, the verdict in Gopalan case was overruled by Supreme Court in Maneka Gandhi v. Union of India (1978) case. In Maneka Gandhi v. Union of India (1978) case, Supreme Court has held that right to personal liberty is protected against arbitrary executive action and arbitrary legislative action. This means that a person can be deprived by a fair, reasonable and just procedure established by law.

Evaluation of judgment of High Court: While dismissing the petition challenging punitive detention, High Court has left fundamental right of personal liberty at the pleasure of executive. The court has given less importance to fundamental rights guaranteed by the Constitution. Examination of the history of preventive detention laws in India shows that the judgment of High court is not surprising.

Critical examination of Jammu and Kashmir Public Safety Act (PSA) of 1978: It provides for detention of a maximum of two years without giving the detained person a chance of trial. It is said that the government has brought the law for timber smugglers. The Supreme Court, in its judgment, in Jaya Mala v. Home Secretary, Government of J&K (1982) has called it a lawless law. The Supreme Court was of the opinion that government might use it to detain people for normal criminal trials. Governments have used the law to limit dissent.

Conclusion:

During the review of different orders passed under PSA Act, courts across India have held that executive decisions related with punitive detention are not in the scope of judicial review. J& K High Court’s judgment in Abdul Qayoom v. State of J&K case is not an exception and has taken the approach taken by the Courts across India. The judgment of J & K High Court gives power to executive and goes against the fundamental right to personal liberty granted by the Constitution of India.