J&K Bar Association President Moves SC Against HC Order Upholding His Detention Under PSA

The Supreme Court will hear tomorrow a plea challenging the Jammu & Kashmir High Court's order, upholding the detention of Bar Association President Mian Abdul Qayoom.

A vacation bench comprising Justices Sanjay Kishan Kaul & BR Gavai shall take up the Special Leave Petition at 11.30 AM against dismissal of the habeas corpus petition which challenged the preventive detention of the Senior Advocate and J&K High Court Bar Association President.

Qayoom has been under detention since August 5, when the Central Government took measures to abrogate the special status of J&K under Article 370 of the Constitution of India.

J&K's Justice Tashi Rabstan, who decided the plea, held that there were sufficient materials to show the subjective satisfaction of the authorities with regard to the need to detain Qayoom, and added that the same was carried out following the procedure under the J&K Public Safety Act 1978.

The High Court had observed that preventive detention is based on "suspicion or anticipation and not on proof".

The detention in the High Court was challenged on the ground that the order was passed by the District Magistrate without proper application of mind.

It was further contended that the grounds of detention were "vague, indefinite, uncertain, and baseless as also ambiguous and lack in material particulars and essential details".

The responsibility for security of State, or maintenance of public order, or essentials services and supplies, rests on the Executive and it must, therefore, have necessary powers to order preventive detention.

Stating that there was limited scope under Article 226 of the Constitution to review a detaining order, the judgment observed :

"...subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court. A Court is not a proper forum to scrutinise the merits of administrative decision to detain a person. The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not".

The challenge in Top Court is filed against this High Court order which had held that that grounds of detention are "definite, proximate and free from any ambiguity". Even a single act is sufficient to justify preventive detention.

"In such circumstances, suffice it is to say that there had been material before detaining authority to come to conclusion and hence, it cannot be said that subjective satisfaction of detaining authority was wrongly arrived at or grounds of detention are self-contradictory or vague. The role of detenu has been specifically described."