Govt Must Enquire Whether Representation Has Been Made Against Detention By Detenue, Any Omissions Fatal For Detention Order's Validity: J&K High Court

A bench of Justice Rahul Bharti observed,

“Onus is equally upon the Government to enquire from the Divisional Commissioner/District Magistrate passing the detention order as the case may, as to whether any representation has been submitted by a detenue against his/her detention..the omission is going to be very fatal to the very validity of the preventive order even if approved and/or confirmed by the Government and/or the Advisory Board”

Zeenat Habib, a 22-year-old woman, was detained by the District Magistrate of Bandipora based on accusations of aiding terrorists. The detention order, however, relied heavily on the dossier prepared by the police, raising concerns about a lack of concrete evidence. Ms. Habib, through her father, challenged the detention order arguing it was based on mere allegations and that she was not provided with proper grounds for detention.

Meticulously examining the grounds of Zeenat's detention, Justice Bharti highlighted discrepancies between the dossier provided by the Superintendent of Police, Bandipora, and the subsequent detention order issued by the District Magistrate, Bandipora.

“A reading of the grounds of detention in juxtaposition to the dossier submitted by SP Bandipora would show that both are mirror image of each other even following punctuation identically. Thus, the text and context of the grounds of detention is what is the text and context of the dossier”, the court pointed.

Focusing on the Advisory Board's opinion which was crucial for confirming the detention, the bench said that the same displayed a lack of sensitivity towards Ms. Habib's gender by using male pronouns for a female detainee.

“The Advisory Board opinion makes a very disappointing reading, on the ground that the Advisory Board was not even having due sensitivity to the gender of the petitioner being a woman as the petitioner has been ascribed opposite sex pronouns like him and his”, the court remarked.

Furthermore, the court found it troubling that the Advisory Board made no attempt to verify Ms. Habib's claim of submitting a representation against the detention order, even though it was absent from the file presented to them.

Spotlighting the responsibility of the government and the District Magistrate while handling the representations of the detenue against their detention orders the court stated that the District Magistrate cannot simply hold onto a detainee's representation and must forward it to the government for consideration by the Advisory Board.

“..In the event a detenue comes to make a representation against his/her preventive detention to the detention order making authority, then not only the representation is to be considered at the earliest by the detention order making authority but also to be ensured by the said authority that the said representation is forwarded by the authority concerned to the government for the purpose of enabling the representation to be tabled before the Advisory Board”, the bench underscored.

The court further emphasized that the "onus" is also on the government to inquire from the District Magistrate if a representation exists before submitting the case to the Advisory Board as this ensures that the Board has all the relevant information to make an informed decision.

Concluding that government's failure to fulfill this responsibility has "fatal" consequences for the validity of the detention order Justice Bharti underlined the District Magistrate's inaction in forwarding Ms. Habib's representation and the government's failure to inquire about it had rendered the entire detention process flawed.

Consequently, the Court ordered her immediate release.

Case Title: Zeenat Habib Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 67

Mr. Mehraj ud Din Bhat Represented the Petitioner While Mr Illyas Laway Represented UT Of J&k

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