J&K Public Safety Act militates against natural justice; HC's refusal to intervene in bar council chief's case gives law greater impunity

The Jammu and Kashmir High Court recently dismissed a petition challenging the detention of the 76-year old President of the Jammu and Kashmir High Court Bar Association, Mian Abdul Qayoom, under the J&K Public Safety Act, 1978 (PSA). He was arrested on the intervening night of 4-5 August, 2019, immediately prior to the abrogation of Article 370 of the Constitution. The Jammu and Kashmir High Court, in Mian Abdul Qayoom v. State of J&K justified Qayoom’s detention on the basis that Qayoom propagated secessionist ideologies in the past, that criminal cases were registered against him and his associates for violating various laws in the past, and that the detaining authority was subjectively satisfied that Qayoom must be detained. It further went on to hold that all of these grounds of detention were “definite, proximate and free from any ambiguity.” This judgment brings into spotlight, two issues that call for immediate, intensive scrutiny: (1) the legitimacy of the draconian PSA in a post-colonial democratic framework; and (2) the efficacy of judicial review in relation to preventive detention matters. In the prevailing political milieu, the PSA, together with the judiciary’s alleged powerlessness in reviewing detentions under the PSA, are collectively impinging on the constitutional rights to free speech and personal liberty. [caption id=“attachment_8034881” align=“alignleft” width=“380”]  File image of the president of the Jammu and Kashmir High Court Bar Association Mian Abdul Qayoom. Image courtesy: jkbarassociation.com[/caption] How PSA allows the government to detain any person with impunity The PSA is structured so as to provide every possible ammunition to the government to enable the detention of any person in any circumstance, while at the same time, stripping the potential detenu of every possible procedural and substantive right. Section 8 of the PSA, in the relevant part, provides that the government may direct the detention of any person if it is “satisfied” that the person might act in a manner prejudicial to the security of the State or the maintenance of the public order. An authorised officer may also pass such detention orders, in which case, such officer must forthwith report this fact to the government together with the grounds on which the detention was made, and this detention must then be approved by the government. As the trend reveals, the government is generally easily “satisfied” that any speech/expression that professes views that are contradictory to its own, prejudices the security of the State or public order. Further, Section 13 of the PSA, in relevant part, provides that the detaining authority must communicate to the detenu, the grounds for detention, within five days, and in exceptional circumstances, within ten days from the date of detention, and shall afford him the earliest opportunity of making a representation against the order of detention. However, the detaining authority need not disclose any facts that it considers to be against the public interest to disclose. The terms “exceptional circumstances,” and “public interest,” are not defined, so in essence, the government can, in every case, take up to ten days to communicate the grounds of detention to the detenu, and refrain from disclosing any fact to the detenu, by deeming it to be sensitive in relation to public interest. Subsequently, under Sections 14 through 17 of the PSA, an Advisory Board (consisting of Government-appointed Chairman and members) determines if there was sufficient cause for the detention. If the Advisory Board reports in the affirmative, the government will confirm the detention order. Therefore, under the PSA, the government detains a person; the same government hears the detenu’s representation against such detention; and the same government (via the Advisory Board) determines if there was a sufficient case for detention. Demonstrably, every procedural layer elucidated in the PSA is a blatant farce, and it strikes at the very root of the principle of natural justice that no person can judge a case in which he/she has an interest. The judgment effectively does away with judicial review, an aspect of the basic structure of the Constitution. In what can be termed as the most disconcerting portion of the judgment, the Jammu and Kashmir High Court refused to scrutinise the merits of the detention, without referring to or applying any safeguards in relation to the law of preventive detention. It is well-established, even in the Jammu and Kashmir High Court’s very own precedents (such as the 2018 Fayaz Ahmad case), that the power of preventive detention must be confined within very narrow limits, and that the law of preventive detention must be strictly construed. However, throughout the judgment, there is not a single instance where the Jammu and Kashmir High Court has attempted to do so. To the contrary, the high court held that the government complied with every underhanded procedural requirement under the PSA. In the Pebam Ningol Mikoi Devi case (2010), the Supreme Court recapitulated that the inclusion of an irrelevant or a non-existent ground among other relevant grounds is an infringement of the detenu’s fundamental right (under Article 22(5) of the Constitution) to be informed of the grounds on which his/her detention is based. In the Qayoom case, some of the activities mentioned in the grounds of detention pertain to the year 2008, for which the detenu had already been detained a decade ago. The issue of whether a person can be detained, time and again, for the activities of the past, requires serious consideration. Further, in the same case, the Supreme Court also clearly held that the “[c]ourt is entitled to scrutinise the material relied upon by the [detaining] [a]uthority in coming to its conclusion, and accordingly determine if there is an objective basis for the subjective satisfaction.” However, in the Qayoom case, the high court held the exact opposite, that the “subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court,” and that the “[c]ourt is not a proper forum to scrutinise the merits of administrative decision to detain a person.” In holding so, the high court did not merely digress from the established law, but also did away with its power to review the government’s detention orders, and tacitly endorsed the unbridled power of the government to detain any person arbitrarily.