Preventive detention is not punitive, says J-K court

The court diktat came a day after the government placed two former J&K Chief Ministers -- Omar Abdullah and Mehbooba Mufti -- under the Public Safety Act (PSA).

Both the senior politicians have been under preventive detention ever since the abrogation of Article 370 of the Constitution, which granted special status to the erstwhile state of Jammu and Kashmir, on August 5 last year. Under PSA, a person can be detained for up to two years without trial.

"A law of preventive detention is not invalid because it prescribes no objective standard for ordering preventive detention, and leaves the matter to subjective satisfaction of the Executive," a single bench of the high court said in its judgement.

Mian Qayoom was detained on August 5, 2019, after the revocation of Article 370. Qayoom was booked under PSA and sent to Agra jail.

A petition against his detention had said that the detainee had been earlier placed under preventive detention in 2010 and after incarceration in various sub-jails of J&K, the detention order was withdrawn.

The court said that preventive detention is not punitive but preventive and aims to prevent a person from committing activities regarded as prejudicial to certain objects that the law of preventive detention seeks to prescribe.

"Preventive detention is, thus, based on suspicion or anticipation and not on proof. The responsibility for security of state, or maintenance of public order, or essential services and supplies, rests on the Executive and it must, therefore, have necessary powers to order preventive detention. Having said that, subjective satisfaction of a detaining authority to detain a person is not open to objective assessment by a court," the high court said.

"A court is not a proper forum to scrutinise the merits of administrative decision to detain a person. The court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not," it added.