A Division Bench of the High Court of J&K and Ladakh, while setting aside the judgment of the Single Bench in a Habeaus Corpus Petition under Article 226 filed by the Appellant wherein the order of detention passed by the Detaining Authority/District Magistrate, by which the appellant was taken into preventive detention under the provisions of Jammu and Kashmir Public Safety Act, 1978 (hereinafter referred to as “the Act”), was dismissed, emphasized on the principle of personal liberty and dignity as enshrined in Article 21 of the Constitution, as well as on the safeguards to preventive detention under Article 22.

Referring to Article 22 of the Constitution as ‘The Fountainhead and Engine that Powers Preventive Detention Laws’, the Court noted that Article 22 (7) (b) gives unfettered power to the Parliament to fix the maximum period of detention of a citizen, without the constitution itself providing a maximum limit thereof, thus, leaving it to the discretion of the elected representatives, giving them draconian powers ‘which the citizens can only hope, would be exercised with caution and responsibility’.

However, the Court, relying upon various pronouncements of Supreme Court held that Article 22 is supplemental to Article 21. In light of A.K Gopalan v/s State of Madras [AIR 1950 SC 27], and Rekha v. State of T.N [(2011) 5 SCC 244] the Court observed, “protecting the life and liberty of the individual as enshrined in Article 21 is the main provision and Article 22(3) which provides for its curtailment by way of Preventive Detention, is a supplemental provision and therefore of subordinate importance to Article 21.”

Further, while dealing with the question, ‘Can an order of detention be tested on the anvil of reasonableness?’ the Court observed that the order of detention results into loss of liberty of an individual and as such the order must pass the test of reasonableness, and where the order of detention is not based on the material placed before the detaining authority, that would amount to non-application of mind, which would render the order violative of Article 14, as also Article 21, as such, the High Court under 226, being guided by the principle of ex debito justitiae can determine the validity of the detention order.

The Court did not find favor with the argument that detention of a person under the PSA or other such law is to prevent him from committing a substantive offence and thus different from an arrest of a person who is an undertrial for an alleged offence already committed by him, as it held the same would amount to ‘trivializing personal liberty’ and observed that the power to detain, like the power to arrest must be exercised as the last option rather than the first.

The Court also disagreed with the view of a Co-ordinate Bench in the case of Mian Abdul Qayoom v. U. T of Jammu and Kashmir [2020 (4) JKJ 127 (HC)], wherein it was held that the ideology of the prospective detenu would be sufficient to constitute subjective satisfaction of the detaining authority. It observed, ‘It is necessary that the person so sought to be detained has transcended his ideology by acting in a manner which raises a reasonable apprehension in the mind of the detaining authority that the detenue’s act is the first step in the chain of causation, which, though not an offence yet, would in all probability than not, result in one affecting public order or the security of the state.’