J&K High Court Allows Detention Order Revocation Before Govt Approval

J&K High Court allows District Magistrates to revoke detention orders under Public Safety Act prior to government approval, ensuring procedural fairness.

Recently, the High Court of Jammu & Kashmir and Ladakh made a significant ruling regarding the revocation of detention orders under the J&K Public Safety Act [Bashir Ahmed Naik vs UT of J&K and Ors].

Justice Sanjay Dhar highlighted the procedure wherein a District Magistrate, after issuing a preventive detention order under the Public Safety Act, must promptly forward it to the government for approval. The law mandates that such an order cannot remain valid for more than twelve days without government approval.

In light of this, the Court deliberated on whether the detaining authority could revoke its own order before obtaining government approval. It determined that the District Magistrate indeed possesses the authority to do so, citing Section 21 of the General Clauses Act, 1897. This provision grants the power to make, amend, vary, or rescind orders to the authority vested with jurisdiction over the matter.

The Court acknowledged a case involving a detention order issued by the District Magistrate of Ramban against an individual accused of anti-national activities. The petitioner, Bashir Ahmed Naik, challenged the detention order, alleging that he was not informed of his right to make a representation before the detaining authority. Furthermore, Naik claimed that the grounds for detention were inadequately disclosed to him.

The State countered these arguments, asserting that all necessary statutory and constitutional safeguards were followed while issuing the detention order. However, upon reviewing the submissions, the Court found merit in Naik's contention that he was not adequately informed of his right to make a representation.

The Court noted that the District Magistrate had only informed Naik about his right to make a representation before the government, rather than before the detaining authority itself. Additionally, it observed that the government approved the detention order six days after it was issued by the District Magistrate.

During this interim period, the Court highlighted that the District Magistrate had the jurisdiction to revoke the detention order. However, there was no evidence to suggest that Naik was informed of his right to make a representation before the detaining authority during this time.

Justice Dhar referred to a previous decision by a division bench, which held that the failure to communicate to the detainee the right to make a representation to the detaining authority until the government's approval would constitute a violation of constitutional rights. Such non-communication would render the detention order invalid.

Consequently, the Court deemed it appropriate to quash the detention order solely on this ground. It directed that the detainee be released from preventive custody unless required in connection with any other case.

Advocate ND Qazi represented the petitioner, while Government Advocate Eishaan Dadhichi appeared for the respondents.