Srinagar: Invoking the stringent Public Safety Act (PSA) against the Aam Aadmi Party (AAP) legislator Mehraj Malik was an “unjustified exercise” which deprived him of his fundamental rights, the Jammu and Kashmir and Ladakh High Court has ruled. In an 87-page order on Monday (April 27), a single judge bench of the court led by justice Mohd Yousuf Wani quashed the PSA proceedings against the AAP legislator who was later released from a jail in Jammu.Observing that “non-application of mind” was “discernible” on part of Doda Deputy Commissioner Harvinder Singh before he approved the PSA detention order, the court said that the accusations against Malik were already covered under ordinary criminal laws.“The invocation of the provisions of the PSA to detain the petitioner rather than to pursue the prosecution against him appears to be an unjustified exercise tentamounting (sic) to violation of the fundamental rights of the petitioner,” the court ruled.The PSA dossier on Malik, prepared by the senior superintendent of Doda police and approved by Singh, cited 18 first information reports (FIRs) and 16 daily diary reports (DDRs) filed since 2014 at various police stations in J&K to justify his detention under the controversial legislation.The high court observed that three cases against Malik have been disposed while the trial in 14 other cases, filed mostly for the violation of the Model Code of Conduct during elections and staging protests against the administration’s alleged negligence and apathy, were at the trial stage.The high court called on the authorities to use preventive detentions as an exception “with great care and caution” so that the “most valuable and inherent” fundamental rights under Article 21 of the Constitution of India were not curtailed.“The preventive detention is made on the basis of subjective satisfaction of the detaining authority in relation to an apprehended conduct of the detenu by considering his past activities without being backed by an immediate complaint as in the case of the registration of the FIR and, as such, is a valuable trust in the hands of the trustees,” the court ruled.The court held that no proximity or live link existed between Malik’s alleged criminal acts and the need for passing the detention order while underscoring that an individual’s rights under Article 21 of the Constitution call for “keeping of a strict vigil on the executive actions from being misused under the garb of maintenance of ‘public order”.“The alleged activities of the petitioner/detenu which present a law and order situation to be taken care of under normal law cannot warrant and justify the preventive detention on the pretext of ‘public disorder’. Since the preventive detention snaps the right of liberty being the most precious human right as such, same needs to be invoked in justified circumstances where the recourse to normal criminal law which has to be done in any way, is genuinely felt inadequate to tackle the wrong doer”.The PSA dossier which draws from the FIRs and the DDRs also accused Malik of instigating “communal disharmony” by uploading a video on social media which shows him purportedly making allegedly abusive remarks against the deputy commissioner Singh.The court however observed that the remarks of Malik in the video didn’t constitute “instigation of communal disharmony” as he was addressing the officer “in his capacity as the District Magistrate and not otherwise as a member of a particular community”.“The said DDRs which have not been registered in the form of formal FIRs for want of proper verifications and for being without formal information reports could not have been considered for ordering the preventive detention of the detenu,” the court said.Citing some apex court judgements and the provisions of the PSA, the court said: “As per the opinion of the court, recourse to preventive detention, in respect of allegations of common law and order infraction is unwarranted and illegal”.The PSA dossier claimed that Malik’s actions were “prejudicial to the maintenance of public order” and that he posed a “grave threat to peace, public order and tranquility” in Doda.Under the Jammu and Kashmir Public Safety Act, an individual can be taken into preventive detention to prevent him or her from acting in a manner “prejudicial to the security of the state and public order”.However, the court ruled that the allegations against Malik “don’t amount to public disorder”.“There must be a direct impact of the alleged act on societal harmony before the same can be adjudged as an act disturbing social order. Every contravention of law may affect order, but before it can be said to affect ‘public order’, it must affect the community or the public at large,” the court observed.The court said that no ground was made out in the case for detaining Malik to prevent him from “acting in a manner prejudicial” to public order.The court also appears to have agreed that the stringent law was invoked against Malik “illegally by way of shortcut when the recourse to normal criminal law had already been made by way of the appropriate remedy” through the FIRs and DDR cited in the PSA dossier.“In the facts and circumstances of the case as already opined by this Court, no act is alleged or can be apprehended in the facts and circumstances of the case to have been/to be committed involving ‘social disorder’.”The court however didn’t agree with the argument’s of Malik’s counsel that Doda deputy commissioner was “biased” while approving the PSA detention and that he had “acted as a judge in his own cause”.Citing the Supreme Court judgements, Malik’s counsel had told the court that under section 8 (2) of the PSA, the power of issuing preventive detention orders could be exercised by divisional commissioner or deputy commissioner.The counsel contended that it was not proper for the deputy commissioner to exercise the powers in view of the differences between him and Malik over “constituency development matters” and that the detaining authority “should be free from emotions beliefs or prejudices while ordering detention”.“In the facts and circumstances of the case, this court is not of the opinion that the impugned detention order is based on malafides or emotions and instead there appears to be non-application of mind”.The court observed that it was a “settled legal position” that a detention order “suffering from non-application of mind of the detaining authority cannot sustain under law”.However, the court added: “This court is conscious of its limited power of review to see whether the impugned detention order is in accordance with the Statute or in compliance with the procedural requirements”.Ordering Malik’s release, the court said: “In the backdrop of the foregoing discussion the petition is allowed and the impugned detention order bearing No. PSA 05 of 2025 dated 08.09.2025 issued by the respondent No.2 i.e District Magistrate, Doda is quashed with direction to the respondents to release the petitioner/detenu forthwith from his preventive detention in the instant case”.