Every Infraction Of Law Does Not Necessarily Affect Public Order/ Security Of State: J&K&L High Court Quashes Preventive Detention Order

The order was passed by Justice Vinod Chatterji Koul who said that an act may affect public order, but not necessarily the security of the State:

"Every infraction of law must necessarily affect order, but an affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping in the same that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and security of the State."

The case of the petitioner, detenue is that he is a carpenter and remains always busy in earning his livelihood. It is also stated that detaining authority while passing impugned detention order has mentioned in the grounds that his activities are prejudicial to the maintenance of public order whereas in the grounds of detention it is mentioned that the activities of the detenu are highly prejudicial to the maintenance of public order as well as security of the UT of J&K. He claims that this shows non application of mind on part of the Court. Therefore, he moved High Court.

The Court relied on A. K. Roy v. Union of India and said that it would be appropriate to say that the Government may if satisfied with respect to any person that with a view to prevent him from acting in any manner prejudicial to the maintenance of the public order or the security of the State, make an order directing that the person be detained. When the law providing for preventive detention permits detention of a person whose activities are prejudicial to defense, security of India or security of the State, it will be lawful to detain such person if any of his activities is considered by detaining authority affecting security of the State.

The Court noted an important question: "does it lead to disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed"? Then answered by observing that this question has to be faced in every case on its facts. "Public order", "Law and order", and "security of the State", draw three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State.

Court said that public order specifies something more than "law and order". It was observed that breach of public order involves a degree of disturbance and it affects upon the life of the community in a locality, which determines whether the disturbance amounts only to breach of law and order and not a public order.

"The difference between two concepts is in only one degree. An act affecting law and order may not necessarily also affect the public order and an act which might be prejudicial to public order may not affect the security of the State. Public order is synonymous with public safety and tranquillity and it is the absence of any disorder involving breaches of local significance in contradiction to national upheavals, such as revolution, civil strife, war, affecting the security of the State."

The Court said that the determining test in all such cases is "the act leads to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of society undisturbed". The expression "law and order", "public order" and "security of the State" are distinct concepts though always not separate. Every public order if disturbed, must lead to public disorder but every breach of the peace does not lead to public disorder.

"For example, when two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings."

Coming back to the case the court noted that detaining authority has made use of both expressions "prejudicial to maintenance of public order" as well as "prejudicial to security of the State", and therefore the impugned order is illegal. The Court also said that perusal of records reveals that the dossier prepared by police, which forms part of detention record when compared with grounds of detention with dossier, shows and reflects that grounds of detention are ditto copy of dossier.

"The detaining authority may get inputs from different agencies, including Senior Superintendent of Police of the concerned District, but the responsibility to prepare grounds of detention is exclusive responsibility of detaining authority. Thus, it is the detaining authority to go through the reports and other inputs received from concerned police and other agencies and on such perusal arrive at a subjective satisfaction that a person is to be placed under preventive detention. It is, therefore, for the detaining authority to prepare and formulate the grounds of detention and satisfy itself that the grounds of detention so prepared/formulated warrant passing of the order of preventive detention."

The Court also noted that the material produced by Senior Superintendent of Police to the detaining authority has not been provided to detenu to enable him to make an effective representation against his detention. Execution report, which is on the detention record produced by the counsel for respondent, reveals that only copies of detention warrant and grounds of detention have been furnished to detenu. Grounds of detention make reference of two FIRs and other activities have also been attributed to detenu, but the same has not been furnished to detenu, which violates the rights of the detenu guaranteed under the Constitution.

Citing the above reasons, the Court quashed the detention order and disposed of the matter.

Case Title: Javid Ahmad Mir Versus UT of J&K and another

Citation: 2022 LiveLaw (JKL) 23