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A detention order will be vitiated if grounds for detention are not communicated: High Court of Jammu and Kashmir

Article 22 clause (5) of the Indian constitution grants the right to representation against a detention order. Unless the grounds for detention are communicated to the detenu, he will be unable to make effective representation and hence an order can be vitiated if the grounds are not communicated. This was held by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Ali Magrey in the case of Majid Ahmad Bhat v Union Territory of Jammu and Kashmir [Case no. (WP Cri No, 177/2020)] on 28th June 2021.

The petitioner, Majid Ahmad Bhat was placed under preventive detention through the order passed by District Magistrate, Pulwama on 9th September 2020. As a result of this, a Heabus Corpus petition was filed with a prayer to quash the detention order on the grounds that it suffers from non-application of mind.  It was brought to the notice of the court that no documents or information was supplied to the petitioner explaining to him why he was detained. It was contended by the petitioner’s counsel that firstly there was no satisfactory reason recorded by the state as to why the petitioner was retained and secondly since he was not made aware about the reason of his detention, the petitioner was not given the right to effectively represent himself. For these reasons the petitioner concluded that the detention order should be declared void.

The counsel representing the state defended the impugned order stating was the preventive detention was based on the past record of the petitioner. The state contended that the petitioner should have simply filed representation based on whatever material he was supplied and that insufficient material should not be sole grounds to vitiate the order. The court declared that by not duly communicating the grounds of detention to the petitioner, the state his violated the constitutional rights and so it was clear that the detaining authority did not apply their mind in this case. The court also cited the case of Lallubhai Jogibhai Patel v Union of India [(1981) 2 SCC 427], where the Supreme Court vitiated a detention order stating that that not communicating the grounds of detention to the detenu in a way understandable to him would violate his right to make representation against the same.

Justice Ali Magrey concluded that “In view of the law laid down by the Apex Court in case titled LallubhaiJogibhai Patel v. Union of India (supra) vitiates the detention order, as not amounting to effect communication of grounds, and resultant deprivation of the right to make representation against the same. That being so the grounds of challenge set up by petitioner, succeeded and the detention stands vitiated; and the petition was thus disposed of.

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