Preventive Detention | Only Those Acts Which 'Gravely Prejudice' Public Order Qualify As Acts Prejudicial To Security Of State: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court on Wednesday ruled that every act which is prejudicial to the security of the state would qualify to be an act prejudicial to the public order but the reverse is not true.

It is only the acts prejudicial to the public order which are of 'grave nature' that would qualify to be termed as acts prejudicial to the security of the state.

A bench comprising Justice Sanjay Dhar was hearing a plea through the medium of which the petitioner had challenged an order issued by District Magistrate, Pulwama whereby the son of petitioner had been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.

Challenging the order the petitioners primarily argued that there had been lack of application of mind on the part of the detaining authority, inasmuch as the detaining authority was not sure as to whether the alleged acts of the petitioner fall under the category of the acts which are prejudicial to the maintenance of public order or prejudicial to the security of the State.

Adjudicating upon the matter Justice Dhar observed that looking at the grounds of detention, the detaining authority has, after narrating the incidents reported in the police dossier and other material, observed that the activities of the petitioner are highly prejudicial to the security of the state but while framing the impugned order of detention, it has been stated that the said order is being passed in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order.

"The expressions "security of the state" and "public order" are quite distinct from each other, inasmuch if contravention of law affects the community or public at large, it amounts to disturbance of public order whereas if the disturbance of public order is of grave nature which affects the security of the state, then the same constitutes an act that would affect the security of the state. Thus, every act which is prejudicial to the security of the state would qualify to be an act prejudicial to the public order but reverse is not true", the bench noted.

Explaining the subject at hand the bench found it necessary to record the supreme court observations in Dr. Ram Manohar Lohia v. State of Bihar and others, 1966 AIR wherein SC observed,

"It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting public order". One has to imagine three concentric circles. 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. By using the expression"maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules"

Justice Dhar while deliberating further on the matter observed that in the instant case while summing up the grounds of detention, the detaining authority has concluded that the acts of the petitioner fall within the category of those acts which are prejudicial to the security of the state but while framing the impugned order it has concluded that the petitioner is required to be placed under preventive detention in order to prevent him from acting in any manner prejudicial to the maintenance of public order. This clearly indicates that the detaining authority has not applied its mind and it was unsure as to under what category the alleged acts of the petitioner fall, the bench noted.

As a result of above stated position of law the bench allowed the petition and quashed the impugned order of. The detenue was directed to be released from the preventive custody forthwith.

Case Title: Jalal Ud Din Ganai Vs UT of J&K

Citation: 2022 LiveLaw (JKL) 119

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