J&K High Court Rules on Detention Order Revocation Power Under Public Safety Act

In a significant ruling, the Jammu & Kashmir and Ladakh High Court has clarified the authority of the detaining authority under the J&K Public Safety Act (PSA) to revoke a detention order before government approval.

In the case of Bashir Ahmed Naik vs UT of J&K and Ors, Justice Sanjay Dhar affirmed that a District Magistrate, after issuing a preventive detention order under the PSA, can revoke it unless it has already been approved by the government.

The Court emphasized that according to the law, a detention order made by a District Magistrate must be approved by the government within twelve days from the date of issuance. However, until such approval, the District Magistrate holds the power to revoke the order, citing Section 21 of the General Clauses Act, 1897, which grants the authority to amend, vary, or rescind orders.

The ruling came in response to a plea challenging a detention order issued by the District Magistrate of Ramban against an individual accused of anti-national activities. The petitioner, Bashir Ahmed Naik, contested the detention order on grounds of being uninformed about the right to make a representation before the detaining authority and incomplete disclosure of material forming the grounds of detention.

The Court found merit in Naik's argument regarding the lack of communication about his right to represent before the detaining authority. Despite being informed about the option to represent before the government, Naik was not made aware of his right to represent before the District Magistrate, as mandated by constitutional rights.

Citing precedent, the Court emphasized that failure to communicate this right constitutes an infringement of constitutional rights, rendering the detention order invalid. Consequently, the Court ordered the release of the detainee from preventive custody, provided there were no other pending cases against him.

The ruling underscores the importance of adhering to procedural safeguards and ensuring transparency in detention proceedings under the PSA. It clarifies the authority of the detaining authority and reaffirms the constitutional rights of individuals subject to preventive detention orders.

Author: Anushka Taraniya

News Writer, MIT ADT University