Right of personal liberty is most precious right, guaranteed under the Constitution, reiterated the High Court of Jammu and Kashmir in a judgment delivered in a Habeas Corpus petition.
Justice Tashi Rabstan, though dismissed the petition challenging the preventive detention of Mohammad Hussain, referred to various Supreme Court judgments highlighting the importance of personal liberty.
The Jammu bench of the High Court in this judgment delivered on Friday makes multiple references to the observations made by the Supreme Court in Secretary to Government, Public (Law and Order-F) and another v. Nabila.
Though these observations are usually quoted and made in cases challenging preventive detentions, they assume relevance in the present scenario post revocation of special status to Jammu and Kashmir. It is also relevant to note that the Supreme Court is in seisin of various petitions challenging media curbs and various other prohibitory orders issued in the state. A petition filed by Tehseen Poonawala also seeks the release of political leaders of J&K who have been allegedly detained. As per reports, leaders such as Omar Abdullah, Farooq Abdullah, Mehbooba Mufti,Mohammed Tarigami etc., are under custody.
The High Court quotes the following observations from Supreme Court judgment in Nabila:
Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State or maintenance of public order must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.
While dismissing the petition, the bench also referred to recent Supreme Court judgment in Union of India vs. Dimple Happy Dhakad. The judge further observed:
Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand, and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of smuggling and black-marketing activities, etcetera demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life In considering and interpreting preventive detention laws, courts ought to show greatest concern and solitude in upholding and safeguarding the fundamental right of liberty of the citizen, however, without forgetting the historical background in which the necessity— an unhappy necessity—was felt by the makers of the Constitution in incorporating provisions of preventive detention in the Constitution itself. While no doubt it is the duty of the Court to safeguard against any encroachment on the life and liberty of individuals, at the same time the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification. It is well settled that if detaining authority is satisfied that taking into account nature of antecedent activities of detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.
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