New Delhi: The Jammu and Kashmir high court has suggested in a recent order that it is unlikely intervene in detentions under the draconian Public Safety Act. On Friday, Justice Tashi Rabastan dismissed one of 300-odd petitions against preventive custody under the Act.
What the judge said while dismissing the petition could mean that others who have been detained are also unlikely to get relief from the high court. According to the Indian Express, the court said that PSA detentions are “based on suspicion or anticipation and not on proof” and that “subjective satisfaction” of the detaining authority to detain a person or not “is not open to objective assessment by a court”.
The court was hearing a petition filed by Mian Qayoom, president of the J&K High Court Bar Association.
The judge also held that the “court is not a proper forum to scrutinise the merits of administrative decision to detain a person” and that this matter “lies within the competence of the Advisory Board”.
“While saying so, this court does not sit in appeal over decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant,” the newspaper has quoted the judge as saying.
While Justice Rabastan has said that the high court is not the right authority to deal with petitions of this kind, previous orders coming from the same court have suggested the opposite. In 80% of cases filed against PSA detentions between the Pulwama attack on February 14, 2019 and August 14, the court dismissed the PSA charges by saying that there was no application of mind or that there was no need for the PSA and other laws could be used.
The PSA Advisory Board, however, which Justice Rabastan referred to in his order as the competent authority, has a very different track record. Though it was set up to check the government’s use of the Act, Indian Express reports that since August 5, only three of the 230 orders of preventive detention were rejected by the Board.
The judge also said that the has “limited scope to scrutinising whether detention order has been passed on the material placed before it, it cannot go further and examine sufficiency of material”. “This court can only examine grounds disclosed by the government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent detenu from engaging in activities prejudicial to security of the State or maintenance of public order,” Justice Rabastan said.
Qayoom had argued that the grounds for his detention are “vague”, and use FIRs that had already been used to detain him in 2008 and 2010.
The government has currently detained a large number of mainstream political leaders – including former chief ministers Mehbooba Mufti, Omar Abdullah and Farooq Abdullah – in Kashmir under the PSA.