Ali Mohammad Mir vs State and Others

M.L. Bhat, J.—The detention order passed u/s 8 of the Jammu & Kashmir Public Safety Act, (hereinafter referred to as ""the Act""), on 31-

1-1084, ordering the detention of Shri. Abdul Razak Mir.alias Bichroo son of Haji Amir Mir, resident of Bichroo Kulgam ; District Anantnag, is

challenged in this writ petition as being unconstitutional and illegal. Prayer is also made for the release of the detenu through the medium of this

petition.

The detaining authority, the District Magistrate Anantnag, has ordered the detention of the detenu on the grounds which reproduced hereinbelow

and are annexed with the detention order :

You are presently the staunch worker of Jamat-i-Islamia a party which is anti-national in character. This organization openly challenges the

accession of Jammu and Kashmir with Indian Union and wants that the people of Kashmir should be allowed to acceed to Pakistan. This party is

an anti-national and a communal organization. The party does not believe in democracy and secularism and wants to establish ""Nizam-i-Mustafa

in the State. You take leading part in the party programmes, processions and Ijtimas.

(1) On 29-7-1983 a public meeting of Jamat-i-Islamia was held at Kulgam near KMD Bus Stand. The meeting was presided over by Sh. Gh.

Mohammad Amir Zilla Baramulla. You also participated in the meeting. You while addressing the gathering said that democracy and secularism

does not serve any purpose and Nizam-i-Mustafa should be established in the State. You further stated that the State had never acceeded to the

Indian Union and demanded that the people had yet to determine their fate by a plebiscite. You appealed the younger generation to participate in

the programmes of the party in order to attain their goal.

(2) On 28-8-1983 an Ijtima of Jamat-i-Islamia was held at Kulgam Bozgam under the Chairmanship of Molvi Mohamad Amin of Shopian. You

also participated in the Ijtima. You impressed upon the gathering that they must work for achieving their goal i.e. self determination and should

work for establishment of Nizam-i-Mustafa. You impressed upon the workers to start a door to door campaign and impress upon the majority

community that as the State had muslim majority population, it must acceed to Pakistan.

(3) On 8-1-1984 ; as Ijtima of the Jamat-i- Islamia was held at Zongalpore, you also participated in the meeting and at the very outset a committee

was established which was named as Shuba Yulba committee. You impressed upon the members of the committee that they must propagate the

aims and objectives of the party among the young generation. They must prepare the people to launch Jehad against the tyranny let loose by the

Indian Government. You impressed upon the gathering that Nizam-i-Mustafa cannot be established unless the people of State are set free from the

Indian occupation. You impressed upon the workers present that they must prepare the people for a revolt against the Indian Govt. and should not

miss any occasion of creating law and order problem. You appealed to the younger generation to come in the active field and fight the Indian Govt.

(4) On 10-1-1984, a meeting of Jamat-i- Isiamia was, held at Kulgam. Syed Ali Shah Geelani presided over the meeting. You also participated in

the meeting. You appealed to the gathering that besides young men they must involve women for achieving their goal. You appealed to the women

folk that they should impart a training to their children and must prepare them to fight against the Indian Govt. In your speech you stated that

secularism had no place in this State and only Nizam-i-Mustafa could solve the needs of the people. You impressed upon the gathering that the

State had not acceeded to India out of their free will, people had yet to decide their fate through an impartial plebiscite. You appealed to the

younger generation to rise in revolt against the Indian Govt. and unite the like minded parties. You appealed to the young men to start a door to

door campaign so that the party folds are made strong enough. After the public meeting, a procession was taken out raising highly objectionable

slogans, you were also seen raising the slogans.

(5) You are a top class communalist. You preach secession. You believe that Nizam-i-Mustafa is the only way to solve all the problems. You are

basically for separation of State from Indian Union. Your activities referred to above are highly prejudicial to the security of the State.

Mr. Qayoom appearing for the petitioner has submitted that it was necessary for the detaining authority to record his satisfaction and make a

mention in the order that on the grounds supplied to the detenu, detention of the detenu was required to be made, as in his opinion, it was

necessary so to do. He has submitted that the detaining authority has omitted to mention his satisfaction about the detention being required or

detention being necessary, and, therefore, the detention order is rendered invalid. In support of his submissions he has drawn my attention to an

authority of this Court viz., Mohd. Ayub Khan Vs. The State of Jammu and Kashmir, In that case, the detaining authority had omitted to mention

it is necessary to do so"" in the detention order, and therefore, the detention order was held to be bad because the requisite satisfaction of the

detaining authority was not recorded in the detention order. From the perusal of the grounds of detention, which have been supplies to the detenu

in the instant case, it is revealed that the detaining authority had not mentioned that on the grounds he was satisfied that the detention of the detenu

was necessary. The words ""it is necessary to, do so"" are not mentioned in the detention order or in the grounds of detention. Therefore, the

submissions of the learned Counsel for the petitioner cannot be said to be without force. The subjective satisfaction of the detaining authority, while

detaining a citizen is to be recorded by him in the order of detention and he must record that the detention of the detenu was necessary and it was

required from preventing him to act in such activities which are mentioned in Section 8 of the Act. Having failed to do so, the detention order is

rendered invalid.

The challenge is made to the detention order on the ground of vagueness of the grounds of detention. The grounds of detention have a preamble

and then charges against the detenu are listed. The preamble cannot be separated from the grounds of detention. In fact ground of detention listed

at serial Nos. 1 to 5 flow from the preamble. Therefore any vagueness in the preamble is to be considered in favour of the detenu. In the preamble

it is alleged by the detaining authority that the detenu was worker of Jamat-i-Islamia, a party which is anti-national in character and which

challenges accession of the Jammu and Kashmir State to the Union of India, and preaches accession of the State to Pakistan. Because of these

things, the party is a communal organization and it does not believe in democracy and secularism and wants to establish ""Nizam-i-Mustafa"" in the

State. The detenu is said to be a leading worker who takes part in the processions and ""Ijtimahas"". I have enquired during the course of arguments

from the learned Chief Govt. Advocate, as to whether there was any order issued by the Government banning Jamat-i-Islamia as anti-national in

character. He conceded that no such order has been issued. In the absence of any declaration made by the Government, it cannot be said as to in

what manner the District Magistrate has styled ""Jamat-i-Islamia"" as anti-national. The detenu's involvement with the said party is confined to

opposing accession of the State to India. The effect of these activities of the petitioner are not spelt out. The detention of the detenu was ordered

for he was considered as acting in a manner prejudicial to the security of the State. Section 8 of the Act has defined the term ""acting in any manner

prejudicial to the security of the State"". It means making preparations for using or attempting to use or instigating, inciting, provocating or otherwise

abetting the use of force to overthrow or overawe the Government established by law in the State. No other meaning can be given to the term

acting in any manner prejudicial to the security of the State."" This Court has to interpret law and cannot make law. Therefore, from reading of

Section 8(3)(a) of the Act it is clear that the activities of a citizen must be calculated at over-throwing by use of force the Government established

by law or overawe such Government by use of force. From the preamble of the order, it cannot be held that by being a member of Jamat-i-

Islamia, detenu as a consequence must have used force to overawe or overthrow the Government by use of force. This, cannot be inferred. This

was to be spelt out by the detaining authority. Therefore, the preamble of the detention order, suffers from vagueness.

In respect of ground No. 1, it cannot be said that this ground is relevant inasmuch as it has no relation with the activities which are required to be

established by the detaining authority u/s 8(3)(a) of the Act. It may be a fact that the detenu was advocating plebiscite and was questioning

accession of the State to the Union of India. It was required to be shown that detenu had acted in such activities which had the effect of

overthrowing or overawing the lawfully established Government by use of force. The detaining authority has conveniently omitted to mention this

fact in the ground. Therefore, this ground has no proximity with the object sought to be achieved Same is true of ground No. 2. Merely because

the detenu is said to have launched door to door compaign to impress upon the majority community that is the Muslim population of the State to

advocate that the State must acceed to Pakistan, is by itself not a ground for detaining a citizen, unless it is shown that by advocating in favour of

Pakistan he was using force to overawe or attempting to overawe or trying to overthrow or attempting to overthrow lawfully established

government. The detaining authority has probably mentioned this ground without caring to look into the provisions of law. Assuming this ground to

be true, it must have relation and nexus with the object which is sought to be achieved. This ground is outside the purview of Section 8(3)(a) of the

Act and suffers from irrelevancy.

I need not consider the validity of grounds Nos. 3 and 4. However, ground No. 5 is vague as also irrelevant. It is vague because it is not spelt

out what is ""Nizam-i-Mustafa"". Nor it is indicated as to in what manner the detenu was top class communalist. The term coined by the detaining

authority out of his imagination is irrelevant, to say the least.

Grounds Nos. 1,2 and 5 are, therefore, declared to be bad and the order of detention on those grounds cannot be made by the detaining

authority. It is well settled that if a irrelevant or vague ground is mixed up with relevant ground, the grounds of detention are to be declared void

because the irrelevant and vague grounds also must have influenced the mind of the detaining authority as he must have assumed satisfaction on the

basis of the grounds which are vague, irrelevant, and may be relevant also. To what extent relevant grounds have influenced his mind is immaterial,

but the influence of irrelevant grounds is substantial. Therefore, the detention order is to be set aside as it can safely be said that the detention order

has been made without application of mind and mechanically.

Learned Counsel for the detenu has further submitted that the detaining authority had malice against the detenu and he has pleaded malice by

narrating facts which had happened in April, 1979. At that time respondent 3 was not posted at Anantnag, Therefore, what had happened in 1979,

respondent 3 cannot be held to harbour any malice about those happenings against the detenu. Moreover, malice pleaded by the petitioner is

vague and cannot be taken into consideration for it does not specify the events of 1979, the names of the person/persons who were against the

detenu in 1979 and who had instigated the detaining authority against the detenu. In the absence of the details malice, cannot be attributed to

respondent 3.

Mr. Oayoom next argued that representation made by the detenu was not considered by the State Government. Under the provisions of the

Act, representation made by the detenu is to be considered by the Advisory Board. The Government is only to forward the recommendation to the

Board and the said Board has to periodically review the detention orders. Therefore, this argument cannot be accepted. It is presumed that the

Advisory Board must have considered the representation and must have discharged its functions in accordance with law. But that will not affect to

right of the detenu to approach this Court in writ petition.

The detenu, it is submitted at the bar, is a respectable citizen, who was a member of the Jammu and Kashmir Legislative Assembly and had

contested the election to the Parliament also. He is entitled to enjoy liberty like other citizens of India. Detention of a citizen, is permissible, but it

has certain limitations. The limitation is imposed by Article 22(5) of the Constitution. At the earliest opportunity the detenu must be informed about

the grounds of his detention and he must be afforded an opportunity to make a representation. This right of detenu is guaranteed under the

Constitution. It is, therefore, necessary that he must know in exact terms and in clear words as to what are the grounds of detention which are

made basis for his remaining in detention. He is entitled to make a representation which must be effective. As already observed, grounds Nos. 1, 2

and 5 suffer from vice of vagueness and irrelevancy and, therefore, the detenu must have been misled and he must have been prevented from

making an effective representation against his detention. That is violative of his fundamental rights as he is deprived of his valuable right. It is rather

the duty of this Court to jealously safeguard the fundamental rights of the citizen and not to allow the executive authorities to play with the liberty of

the citizens at their whim and caprice. Looking to the grounds of detention, which are held to be vague and irrelevant, I have no hesitation to say

that the detaining authority has acted arbitrarily and has infringed the fundamental rights of the detenu. His attempt to detain the detenu may be

honest, but that attempt is to be defeated and frustrated for non-compliance with the mandate contained in Section 8 of the Act and for violating

the guarantees contained in Article 22 Sub-clause (5) of the Constitution.

For the reasons stated hereinabove, the detention of the detenu is unconstitutiona illegal, and bad in law. Allowing this writ petition, same is set

aside. I furthe direct that the detenu be set at liberty forthwith.