The High Court of Jammu and Kashmir and Ladakh recently castigated an Indian Administrative Officer (IAS) serving as the district magistrate of Udhampur for the callous manner in which she passed an 'absurd' preventive detention order [Ashraf Ali v. Union Territory of J&K].
Justice Rahul Bharti found that the case before him reflected utter casualness and callousness on the part of the district magistrate, "in dishing out a preventive detention order as if loss of personal liberty of a person is a matter of an administrative excursion."
The judge added that he had serious reservations about whether the IAS officer, Saloni Rai, should be allowed to retain the authority to pass such preventive detention orders under the Jammu and Kashmir Public Safety Act (PSA).
However, he left it to the government to take that call.
"This Court is constrained to observe that the judgment of Mrs. Saloni Rai, IAS District Magistrate, Udhampur to act as a detention order making authority under the J&K Public Safety Act, 1978 is seriously suspect. It is for the Home Department, UT of Jammu & Kashmir to take a call to deprive the incumbent District Magistrate, Udhampur of her said jurisdiction to indulge in future exercising of the preventive detention jurisdiction under the J&K Public Safety Act, 1978 lest she would repeat the acts of omission or commission in some other form again thereby violating fundamental right of right to life and personal liberty of some other person to a serious damage," the Court said.
Interestingly, the Court began its September 17 order by quoting a French phrase, which translates to “On a fool’s beard the barber learns to shave."
The Court opined that this was an appropriate way to refer to the manner in which the district magistrate, in this case, committed a faux pas and then tried to cover up her error, at the cost of a man's right to personal liberty.
The Court also directed Registrar (Judicial) to circulate a copy of this judgment to the government, to remind all District Magistrates in Jammu and Kashmir to be more attentive while passing preventive detention orders
The Court was hearing a petition by one Ashraf Ali @Shiffu who was detained in January this year after the district magistrate of Udhampur ordered for his preventive detention. The order was based on a dossier prepared by the Senior Superintendent of Police (SSP), Udhampur.
These authorities termed 30-year-old Ashraf Ali as a serious and hard-core offender who was involved in bovine smuggling, theft and bootlegging cases. The detention was initially for a three-month period, but was later extended in April.
His father then filed a habeas corpus petition on his son's behalf, urging the High Court to quash the preventive detention order.
The High Court was startled to find, among other errors, that the preventive detention order against Ali said that his activities may cause a "distribution in public peace and tranquility."
The Court noted that the district magistrate tried to cover up her folly by issuing a corrigendum, whereby she claimed that the line was supposed to indicate that Ali's activities would be "Prejudicial to maintenance of Public Order."
The Court took a serious view of the matter and asked the District Magistrate to explain her conduct.
The Court eventually concluded that the text of her order and her attempt to "cover up her embarrassment" instantly proved that the preventive detention order against Ali was "nothing but nullity in the eyes of the law" from the very start.
It pointed out that there was nothing to indicate that the corrigendum was even served to Ali. This meant that he was served with a detention order which said (among other things) that he was being detained for a "distribution in public peace and tranquility."
Any reader of an ordinary reading intelligence would be left perplexed in trying to make sense of this line, the Court observed.
Otherwise also, the Court said that there were no circumstances cited in Ali's case to justify his detention under the PSA.
Ali's fundamental rights under Article 21 (life and personal liberty) of the Constitution of India have been seriously trampled upon due to the actions of the district magistrate of Udhampur as well as other authorities who confirmed or extended Ali's detention in the same pedantic manner, the Court concluded.
The Court, therefore, set aside the detention order and ordered Ali's immediate release from detention.
It also considered imposing exemplary costs on the IAS officer who passed the preventive detention order, but eventually refrained from doing so.
Advocate AR Khan appeared for Ali and his father (petitioner).
Government Advocate Sumeet Bhatia appeared for the Jammu and Kashmir government.
[Read Judgment]