JAMMU & KASHMIR HIGH COURT
S.M. Rizvi, J.
Kashmir Bar Association - Petitioner
versus
State of J & K - Respondent
Habeas Corpus Petition No. 504-1990
Decided on 14.2.1991

IMPORTANT POINT
The language of Art, 22(4) of the Constitution of India, is mandatory in nature and therefore, not only an order but even no law providing for detention shall authorise the detention of a person for a larger period than two months.

Headnote:(i) J & K Public Safety Act 1978 - Section 8 - Detention under - Grounds of detention signed by Addl., Chief Secretary (Home) - It is not expressed anywhere that they are on behalf of the Governor of the Govt., or by their order Non-compliance of mandate of Article 45 of the constitution - Consequences.

       Held: Under Section 8 of the Act, there are three persons competent to pass any order there under and they are i) Govt, of J & K, ii) Divisional Commissioner of the respective Division, and iii) District Magistrate of the respective District.

       The expression 'Government' is not defined in the Act. It appears that the expression 'Govt, (as mentioned in Sub-Clause-I) of section 8 means 'Executive Govt,' distinguishing it from ‘political executive, legislative and other instrumentalities of the Govt, as are included in Article 12 of the constitution of India. Under Art. 26 of the constitution of J & K, the executive power of the state vests in the Governor, and he is entitled to exercise powers, either directly or through officers, subordinate to him, in accordance with the constitution.

       Admittedly, when the order of detention was passed the Governor, had assued to himself all the functions of the Government of the state. Thus the Governor constitutes the Govt, under the provisions of the constitution and this will equally hold true for sub-clause i) of section 8, of the Act.

       It is the constitutional requirement that all executive, action of the Govt, shall be expressed to be taken in the name of the Governor or of the Govt. of J & K as provided in Art. 45(I) of the constitution of the J & K. Under Sub-Clause (2) of Art 45 it is provided that orders and other instruments made and executed in the name of the Governor or of the Govt, of J & K shall be authenticated in such manner as may be specified in the rules to be made by the Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor, or, as the cases may be, by the Govt. of J & K.

       Clause (I), requires that all executive action of a state Govt. shall be expressed to be taken in the name of Governor or of the Govt. of J&K. It does not however, require any particular formula of words for compliance with Art. 45(1). What the court has to see is whether: the substance of its requirements has been complied with because the provision is only directory.

       Further held: The order would be upheld if the state can otherwise, prove that the order was, in fact, made by the Governor. So where an executive order has not been expressed in the manner laid down in Clause (I), it is still open to the Governor to show, by independent evidence that the order was, in fact, made by the Governor. This may be proved (a) by producing the relevant Govt, records, or (b) by the affidavit of a responsible officer. (Para 16)

       In the instant case the court is confronted with peculiar legal problem. The order of detention is not on the file. It has not been produced by either side. The court does not know the contents the expression used in that order. Whether it is expressed in the name of the Governor or of the J & K Govt, we don't know. Only grounds of detention are on the file and it is not expressed any where therein that they are on behalf of the Governor of the Govt, or by their order. They are only signed by the Addl. Chief Secretary (Home) J& K. There is no authentication anywhere, on the said grounds, whether they are by the Governor or the Govt. of J&K. Even the official scale of the officer has not been affixed thereon. No record has been produced by the respondent to prove, that the order of detention has been passed by the Governor or the ground of detention made by him. Even the affidavit has not been filed by any responsible officer to prove the same. In these circumstances, how can the court presume that there is a substantial compliance with Article 45. The failure of the respondent to comply with the mandate may not as such nullify the order, but it definitely takes away the constitutional immunity from proof. When the Proof too has not been produced the court shall be at liberty to presume that there is no compliance with the mandate of Article 45. (Para 17)

       (ii) J & K Public Safety Act - Section 8. Detention under - Challenged on the ground of non-compliance with law - Subjective satisfaction of the detaining authority is the pre-requisite condition for the order of detention - No material on record to satisfy the Court about it - Presumption that the detenu has not been detained in terms of section 8 of the Act.

       Held: The order of detention is not on the file and the court therefore, cannot presume its contents and the expressions used therein. The grounds of detention which are on the file are silent about the assumption of satisfaction by the detaining authority. It does not say anywhere that the Governor was satisfied that the activities of the detenu were prejudicial, to the security of the state and it was necessary to detain him for preventing him to indulge in such activities. It is beaten law, that the detaining authority before passing the order must be satisfied about such activities and express it in clear terms that it was so satisfied. After all it is the subjective satisfaction of the detaining authority about the activities of the detenue prejudicial to the maintenance of public order or the security of the state, that gives it jurisdiction to detain a person. Unless the authority is so satisfied, it cannot take away the liberty of a person which is his constitutional right as enshrined in the constitution of India. The required satisfaction should be of the authorities as mentioned in section (8) and in the instant case of the Governor or of the Govt. of J&K. It cannot be the satisfaction of any other authority not mentioned in section 8. The Addl. Chief Secretary (Home) is no entity in Section 8, who has the power to detain any person. From the perusal of grounds of detention it is evident that the order has been passed by him, though he is no authority u/s. 8. Unless it is shown to the court that it was the governor or the Govt. Which has passed the order or assumed subjective satisfaction in question in the present case, it cannot be presumed that such order was - passed by the competent authority in terms of section 8. (Para 20)

       (iii) Constitution of India - Art 22(5) - J&K Public Safety Act - Section 8 - Detention under - Challenged - The required documents were not annexed with the grounds of detention - Non-supply of the documents to the detenu Violation of constitutional right as contained in Art. 22(5) of the Constitution of India - The impugned order is liable to be quashed.

       (iv) Constitution of India - Art 22(5) - J & K Public Safety Act - Section 8 - Detention under - Non-consideration of detenue's representation - Vitiates the order of detention.

       (v) J & K Public Safety Act - Section 8 - Detention under - Detenue was to be informed about his right to make a representation to the detaining authority - Failure to do so deprives him of a constitutional right as enshrined in Art. 22(5) of the Constitution of India.

       (vi) J & K Public Safety Act - Section 8 - Detention under - Activities which are prejudicial to the security of the State.

       Held: So far as the preamble to the grounds of detention is concerned, it alleges that the detenue happens to owe allegiance to the Jamat-e-Islami, which allegedly is a secessionist organisation and strives to seek secession of the state of J & K from the Union of India. Further, it is alleged that during elections to the state legislative Assembly in 1987, he supported the Muslim united Front and from time to time has been preaching succession and supporting the demand for holding plebiscite in the state, thereby challenging the stat's accession with the union of India. (Para 29)

       So far as the allegation of Jamat-e-Islami being a secessionist organization is concerned there is no proof before the court to show that the said party is of such a character. The respondent has not produced any record before the court to hold the said party as such. Whether the detenue owes allegiance to that party is also without any proof.

       Mere allegation in the grounds of detention is not sufficient to dub a person as such. As regards the allegation that the detenue in 1987, supported the MUF and also supported their alleged demand for holding of plebiscite, it is too remote a thing to be considered for detaining of a person after more than three years and has no nexus with the object to be achieved. For an activity of three year's past, one cannot be retained for such activity allegedly prejudicial to the security of state. Moreover, mere allegation of a demand for holding of plebiscite without showing that it was for over throwing of the Govt. established by law, it cannot be held to be an activity prejudicial to the security of the state. (Para 30)

       Further held: Now so far as the instance No. 1, in the grounds of detention is concerned, it also suffers from vagueness. Unless, the alleged activity of the detenu is shown to have the effect of overthrowing or overawing a lawfully established Govt, by use of force, it cannot be held to be an activity prejudicial to the security of the state. Merely, getting of a statement signed, by the members of bar wherein allegedly a demand for self-determination was made, may not constitute an activity prejudicial to the security of the state unless it is shown, that it has the effect of overthrowing a lawfully established Govt (Para 32)

       As regards the instance No.2. in the grounds of detention, it is averred in the petition that no such slogans as mentioned there in were raised by the advocates. It is further averred that the advocates were holding banners in their hands seeking to hold plebiscite and to seek prevention of violation of human rights. There is no rebuttal to the averments made by the petitioner and therefore, the court has no alternative but to hold that no such slogans were raised. (Para 33)

       Moreover, as held above, the instances in the grounds of detention are based on the CID diaries and the Bar resolution, copies whereof have not been furnished to the detenue and therefore, they cannot be read against him. Non-supply of such copies has deprived the detenue of his right to make an effective representation against the order of detention and therefore, has violated the constitutional guarantee as mandated in Art. 22(5) of the constitution. (Para 34)

       (vii) Constitution of India - Art. 22(4) as amended by the 44th Amendment Act 1978 - No law providing for detention of a person for a longer period than two months - Fixation of maximum period of detention, before the matter is considered by the Advisory Board would be violative of Art. 22(4) of the Constitution of India.

       Result: Petition allowed. The detention of the detenu is held as un-constitutional, illegal and bad in law.