Former Jammu & Kashmir Chief Minister Dr. Farooq Abdullah was detained under the
J&K State Public Safety Act, 1978 on September 16, 2019. Eighty-three year old
Dr. Farooq Abdullah, has been J&Kâ€™s Chief Minister in 1982-1984, 1987-1990 &
1996-2002. He was elected as a member of the Indian Parliament (Lok Sabha) as
well as (Rajya Sabha) and also remained Union Cabinet Minister.
This was hours before the Supreme Court was due to hear Rajya Sabha Member
Vaikos Habeus Corpus Petition, seeking the J&K Government to produce him in
Court and release him from detention.
Statements mobilising people against the State and the â€śtremendous potentialâ€ť to
create public disorder in the Valley are among the charges listed against former
Jammu and Kashmir Chief Minister Farooq Abdullah, who has been booked under the
Public Safety Act. It says he could have debated the issue rather than threaten
the integrity of the country and glorify militancy. The order also accuses him
of propagating â€śsecessionist ideologyâ€ť besides posing a threat to life and
liberty of the people.
Dr. Farooq Abdullah, the order states, â€śhas tremendous potential for creating an
environment of public disorder within the District (Srinagar) and other parts of
the Valleyâ€ť. It accuses him of being a person seen as fanning the emotions of
general masses against the country. The order, which states that Abdullahâ€™s
residence â€śG-40 Gupkar Roadâ€ť has been declared a subsidiary jail, has also been
accused by the State Administration of issuing statements in conflict with law
that were aimed at disturbing public order.
Though the formal order of detention was passed on September 16, 2019, Dr.
Farooq Abdullah has been under house arrest since August 05, 2019 the day when
President of India had issued the Constitution (Application to Jammu & Kashmir)
Order, 2019 under Article 370 of Constitution of India to revoke the special
status of Jammu & Kashmir.
On September 11, 2019 the J&K High Court allowed two NCP leaders to meet
Abdullah on condition that they should not talk to media about the meeting. This
order of the High Court recognizes the fact that Abdullah was under
restrictions, even before the issuance of formal detention order.
What is Preventive Detention?
The history of civilized man is the history of incessant conflict between
liberty and authority. The Constitution of India contains sufficient guarantees
to prevent the misuse of the State power to arrest and detain the individuals
but the preventive detention is an exception to the general law providing
protection against arrest and deprivation of personal liberty. The word
preventive is used in contradiction to the word punitive. The object is to
detain a person under preventive detention is not to punish him for having
done something but to intercept him before he does it and to prevent him from
The justification for such detention is suspicion or reasonable probability and
not criminal conviction which only can be warranted by legal evidence. The
preventive detention is not punitive in nature and it is not an alternative to
criminal trial. The purpose of such detention is to prevent a person from
indulging in activities prejudicial to security of the State or Public Order or
from indulging in anti-national activities.
A clear distinction has to be drawn between preventive detention in which
anticipatory and precautionary action is taken to prevent recurrence of
apprehended events and punitive detention where action is taken after the event
has already happened. The preventive detention can be ordered notwithstanding
the fact of non-registration of criminal case against him and the possibility of
launching a criminal prosecution cannot be bar to the preventive detention.
The power of preventive detention has been recognized as a necessary evil but is
accepted in a free society in the larger interests of society of the State and
the maintenance of Public Order.
History of Preventive Detention
In India, preventive detention was introduced for the first time in 1818 by
the Bengal State Prisoners Regulations. The Government of India Act, 1935 also
contained the provisions for preventive detention empowering Federal as well
as Provisional Legislatures to enact laws providing for preventive detention.
The Federal Legislature had legislative powers with respect to matters contained
in Entry I of List I and the Provisional Legislature over the matters contained
in Entry I of List II.
Though some members of Constituent Assembly who framed the Constitution of India
were victims of preventive detention during British Rule over India
particularly during World War II, still the provisions relating to preventive
detention were included in Constitution of India. The need to keep such
provisions in the Constitution was felt due to the violence which had erupted
during partition of India. The need felt by framers of the Constitution of India
in giving constitutional status to preventive detention was with the object of
giving anti-social and subversive elements from imperilling the welfare of the
Power of Parliament & State Legislatures to enact laws providing preventive
Article 246 clause (i) of Constitution of India identifies powers of the
Parliament to make laws with respect to any of the matters enumerated in its
List I [Union List] of the Seventh Schedule. Entry 9 of Union List identifies
the powers of Parliament to enact laws providing for preventive detention.
Entry 9 reads as under;
Preventive detention for reasons connected with Defence, Foreign Affairs or
the Security of India; persons subjected to such detention.
Thus the Parliament alone can enact laws providing for preventive detention
when such detention is to be ordered for reasons connected with Defence, Foreign
Affairs or the Security of India.
The clause (2) of Article 246 of the Constitution of India empowers the
Parliament as well as State Legislatures to legislate with respect to the
matters enumerated in List III of Seventh Schedule. The Entry 3 of List III
[Concurrent List] of Seventh Schedule of Constitution of India which identify
these powers read as under;
3. Preventive detention for reasons connected with the Security of a State, the
maintenance of public order, or maintenance of supplies and services essential
to the community; person subject to such detention.
The Parliament as well as State Legislatures, thus, have concurrent powers to
enact laws providing for preventive detention for reasons connected with
security of the State, the maintenance of public order, or the maintenance of
supplies and services essential to the community and the persons subjected to
In fact power to enact laws is inherent in Parliament and State Legislatures.
The Parliament or a State Legislature can enact any law subject to express
provisions of the Constitution of India. The Article 246 or Schedule Seventh of
Constitution of India does not confer powers of legislation to the Parliament or
State Legislatures but it distributes the legislative powers among Parliament
and State Legislatures and provides the spheres within which they can exercise
the legislative powers.
The Parliament is excluded to enact laws with respect to matters contained in
State List i. e List II of Schedule VII and the State Legislatures are excluded
to legislate with respect to matters contained in Union List i.e List I of
If any provision of a law made by a State Legislature is repugnant
to any provision of law made by Parliament with respect to any matter enumerated
in Concurrent List the law made by Parliament whether passed before or after the
law made by the State Legislature shall prevail. The Parliament may also enact
laws containing provisions for preventive detention under its residuary powers
or while exercising legislative powers under Article 249 of the Constitution of
India. The law providing for preventive detention and the actions thereunder
must, however, satisfy requirements of both Articles 21 & 22 of the Constitution
Power of J&K State Legislature & Parliament to make Preventive Detention
laws for State of Jammu & Kashmir
So far as the State of Jammu & Kashmir is concerned, the State Legislature and
not the Parliament was competent to enact preventive detention laws. The reason
being that by virtue of Article 370 of the Constitution of India various
provisions of the Constitution apply in relation to the J&K State subject to
such exceptions and modifications as the President may specify.
The Parliament of India issued The Constitution (Application to Jammu and
Kashmir) Order, 1954 and had thereby extended various provisions of the Constitution of
India to the State of Jammu & Kashmir with certain exceptions and modifications.
The Entry 9 of Union List and Entry 3 of Concurrent List under which preventive
detention laws can be enacted by the Parliament do not apply at all to the
State of Jammu & Kashmir. The residuary powers also lie with State Legislature.
The Article 22 (2) and (7) of the Constitution of India apply to the State of
Jammu & Kashmir with the modification that in place of law made by Parliament
the law made by the State Legislature is substituted. Thus, it is the (J&K)
State Legislature and not the Parliament which has power to enact laws
a) the circumstances under which, and the class or classes of cases in which, a
person may be detained for a period longer than three months under any law
providing for preventive detention without obtaining the opinion of an
Advisory Board in accordance with the provisions of sub-clause (a) of clause (4)
of Article 22;
b) the maximum period for which any person may in any class or classes of cases
be detained under any law providing for preventive detention; and
c) the procedure to be followed by an Advisory Board under sub-clause (a) of
clause (4) of Article 22.
What is J&K Public Safety Act?
The detention order having been passed under the Jammu & Kashmir Public Safety
Act 1978, which was introduced by the Government led by Sheikh Mohammad Abdullah
(Father of Farooq Abdullah). Many in the opposition either compromised the
enactment with criminal silence or offered feeble resistance. But Chief
Minister, Sheikh Mohammad Abdullah was fiercely confronted by then Janata Party
MLA Abdul Gani Lone.
The Act was enacted in the interest of the security of the State and public
order. It was brought to prevent timber smuggling and keep the smugglers in
prison. It contains provisions for designating protected and prohibited areas,
prevention of circulation of documents in the interests of communal harmony etc.
Section 8 of the Act deals with the power of authorities to detain persons.
The Government can order the detention of a person :
* to prevent him from acting in any manner prejudicial to security of the State
or maintenance of the public order;
* if he is a foreigner within the meaning of Foreigners Act;
* if he is a person residing in the area of the State under the occupation of
Pakistan and it is necessary to regulate his presence or to expel him.
As per the definition given in Section 8, acting in any manner prejudicial to
the maintenance of public order means
(i) promoting, propagating, or attempting to create, feelings of enmity or
hatred or disharmony on grounds of religion, race, caste, community, or region;
(ii) making preparations for using, or attempting its use, or using, or
instigating, inciting, or otherwise abetting the use of force where such
preparation, using, attempting, instigating, inciting. provoking or abetting,
disturbs or is likely to disturb public order;
(iii) attempting to commit, or committing. or instigating, inciting, provoking
or otherwise abetting the commission of mischief within the meaning of Section
425 of the Ranbir Penal Code where the commission of such mischief disturbs, or
is likely to disturb public order;
(iv) attempting to commit, or committing, or instigating, inciting, provoking or
otherwise abetting the commission of an offence punishable with death or
imprisonment for life or imprisonment for a term extending to seven years or
more, where the commission of such offence disturbs, or is likely to disturb
The District Magistrates and Divisional Commissioners are also empowered to
As per Section 13 (1) of the Act, the authority making the detention should
communicate to the detenu the reasons of detention to enable him to make a
representation against the order of detention in exercise of the fundamental
right guaranteed under Article 22 (5) of the Constitution of India.
However, the authority need not disclose such facts to the detenu which it
considers to be against public interest to disclose [Section 13 (2)]. Therefore,
the right under Section 13 (1) can be effectively defeated if the authority
chooses not to disclose whole facts in public interest.
Period of Detention
The maximum period of detention in the case of persons acting in any manner
prejudicial to the security of the State is two years.
In case of a person acting prejudicial to the maintenance of public order or
indulging in smuggling of timber, the maximum period of detention is twelve
Reference to Advisory Board
Within four weeks of passing a detention order, the Government has to refer the
case to an Advisory Board, which consists of a Chairperson, who is or has been a
Judge of the High Court, and two other members who are, or have been, or are
qualified to be appointed as Judges of the High Court.
The Advisory Board, after considering the material placed before it and, after
calling for such further information as it may deem necessary from the
Government and after hearing him in person, submit its report to the Government
within eight weeks of detention order.
If the Advisory Board opines that there are sufficient causes for preventive
detention, the Government can keep the person under detention for such period
as it thinks fit, subject to the maximum limit.
Can detention be challenged?
The Advisory Board is supposed to examine if there are sufficient reasons for Preventive
It is pertinent to note that the detenu has no right to engage a legal
practitioner before the Advisory Board. The Advisory Board can also decide if
the disclosure of grounds of detention to the detenu will affect public
interest. The detenu is not entitled to the report of the Advisory Board, if the
Board decides that it should remain confidential.
The detention can be challenged through Habeas Corpus Petitions before High
Court under Article 226 of Constitution of India. However, the scope of
challenge is limited to grounds of procedural violations.
If there is non-application of mind by the Detaining Authority, or
non-communication of the grounds of detention to the detenue, the High Court can
quash the Detention Order as illegal. There are cases of High Court interfering
with Detention Order on the ground that authority failed to inform the detenue
of his right to make representation to the Detaining Authority and the
Government against the order. It is important that the District Magistrate
forms independent opinion regarding the necessity of ordering Preventive
Detention. If the Magistrate merely copies the report of the Police, it will be
a case of non-application of mind. The High Court has quashed Detention Orders
on the ground of non-application of mind, after finding that the order was a
verbatim copy of the Police Dossier.
Non-supply of relevant material documents to the detenu is also a ground for
setting aside Detention Order 2018 (2) JKJ 254 [Ab. Rasid Vs State of J&K &
The grounds of detention are not to be formulated in shorthand, or in a language
of abbreviations or acronyms only known to the Detaining Authority. As observed
by Honble Supreme Court of India in Smt. Raziya Umar Bakshi Vs Union of
India, AIR 1980 SC 1751 that;
The service of the grounds of detention on the detenue is a very precious
constitutional right and where the grounds are couched in a language which is
not known to the detenue, unless the contents of the grounds are fully explained
and translated to the detenue, it will tantamount to not serving the grounds of
detention to the detenue and would thus vitiate the detention ex-facie.
In cases where the detaining authority is satisfied that the grounds are couched
in a language which is not known to the detenue, it must see to it that the
grounds are explained to the detenue, a translated script is given to him and
the grounds bear some sort of a certificate to show that the grounds have been
explained to the detenue in the language which he understands. J&K
Reorganisation Act, 2019 passed by the Parliament on August 09, 2019, makes it
clear that the J&K Public Safety Act, 1978 would continue to remain in force in
the newly created Union Territory of Jammu & Kashmir and Union Territory of
Preventive Detention is resorted to when the Executive is convinced that such
detention is necessary in order to prevent the person detained from performing
an act or preventing him from acting in any manner prejudicial to the security
of the State or from acting in any manner prejudicial to the maintenance of
public order. The compulsions of the primordial need to maintain order in
society, without which the enjoyment of all rights, including the right to
personal liberty of citizens would loose all their meanings provide the
justification for the laws of preventive detention.
Laws that provide for preventive detention posit that an individuals conduct
prejudicial to the maintenance of public order or to the security of State or
corroding financial base provide grounds for satisfaction for a reasonable
prognostication of possible future manifestation of similar propensities on the
part of the offender. the justification However. the High Court will not
undertake substantive review of the merits of the detention and generally
refrain from reviewing the subjective satisfaction formed by the
Detaining Authority regarding cause of detention, except there are patent
illegalities or unreasonableness. The powers of the courts are very much
circumscribed in the PSA detentions and the Courts have very limited powers to
quash such detentions for anything other than technical grounds and procedural
Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of
Email: [email protected], [email protected]