Jammu and Kashmir HC Rules Out ‘Disturbance to Public Peace’ not a Grounds for Preventive Detention

preventive detention - LAW INSIDER

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Published on: 14 September 2023 at 17:15 IST

The High Court of Jammu and Kashmir and Ladakh has made it abundantly clear that “disturbance to public peace and tranquility” cannot serve as a valid basis for subjecting an individual to preventive detention under Section 8 of the Jammu and Kashmir Public Safety Act of 1978.

This significant decision came as the Court quashed a preventive detention order issued by the District Magistrate of Kathua.

Justice Rahul Bharti, presiding over the case, rendered the verdict, which not only annulled the detention order but also raised concerns about the District Magistrate’s attempt to introduce a novel criterion for preventive detention that the law did not authorize.

The detained individual had been held in custody since February 18, 2023, following orders issued by the District Magistrate of Kathua. However, Justice Bharti observed that Section 8 of the 1978 Act does not include any provision allowing detention based on the disturbance of public peace and tranquility, and the District Magistrate had essentially fabricated a new justification for the detention.

The Court also criticized the Jammu and Kashmir government and the Advisory Board for failing to identify this critical flaw in the Magistrate’s detention order before endorsing it. Additionally, the Court noted a procedural irregularity, as the first of the three detention orders against the individual was issued ten days after the initial detention on February 18, with the order being dated February 28.

Justice Bharti remarked that this situation was a lamentable lapse in the exercise of preventive detention jurisdiction.

The case revolved around a petition filed by Naresh Kumar, also known as Chipu, challenging three preventive detention orders issued against him. These orders were ostensibly put in place to prevent him from committing further offenses and to maintain public peace and tranquility.

However, the Court emphasized that Section 8 of the Public Safety Act outlines six specific grounds for preventive detention, such as safeguarding the security of Jammu and Kashmir, maintaining public order, preventing the smuggling of timber or liquor, and related activities. Importantly, the law does not include “disturbance to public peace and tranquility” as a legitimate basis for subjecting an Indian citizen to preventive detention.

Consequently, the Court ordered the immediate release of Naresh Kumar, deeming his detention unlawful and stating that no legal recourse could salvage the detention order.

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