The High Court of Jammu & Kashmir holds that non-communication or delayed communication of the government’s decision on a detenu’s representation violates Article 22(5) of the Constitution and vitiates the detention order. This judgment reaffirms binding precedent, relying on Supreme Court authorities, and clarifies strict compliance requirements under preventive detention laws—serving as binding authority for lower courts in similar matters.
Summary
| Category | Data |
|---|---|
| Case Name | HCP/51/2025 of FAROOQ AHMED TH SHAFIQA BEGUM Vs UT OF J AND K TH FINANCIAL COMMISSIONER HOME DEPARTMENT JAMMU AND OTHERS |
| CNR | JKHC020018892025 |
| Date of Registration | 09-04-2025 |
| Decision Date | 17-10-2025 |
| Disposal Nature | Disposed Off |
| Judgment Author | Hon’ble Mr. Justice Vinod Chatterji Koul |
| Court | High Court of Jammu and Kashmir and Ladakh at Jammu |
| Precedent Value | Binding on subordinate courts within the jurisdiction |
| Overrules / Affirms | Affirms Supreme Court judgments on procedural safeguards for preventive detention |
| Type of Law | Preventive Detention / Constitutional Law (Article 22(5)), Jammu & Kashmir Public Safety Act, 1978 |
| Questions of Law | Whether failure to communicate, or delayed communication of, the decision rejecting a detenu’s representation renders the preventive detention order invalid under the Constitution and the PSA. |
| Ratio Decidendi | The failure of the authorities to promptly communicate the rejection of a representation against preventive detention to the detenu violates their constitutional right under Article 22(5), which mandates both the expeditious consideration and timely intimation of such a decision. The procedural safeguard is not fulfilled by mere consideration; effective communication is essential. Non-compliance is sufficient to vitiate the detention order, as recognized by the Supreme Court in multiple cases. The court found procedural lapses in this case, including delayed communication and failure to provide complete documents in a language understood by the detenu, justifying the quashing of detention. |
| Judgments Relied Upon |
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| Logic / Jurisprudence / Authorities Relied Upon by the Court | Supreme Court precedents establishing that the right to representation includes consideration and timely communication. Delay or omission in such communication is a material breach vitiating detention. ‘Time imperative’ is not absolute but significant, focusing not on mechanical deadlines but on genuine expedition and substantive rights. |
| Facts as Summarised by the Court | The petitioner was detained under the Jammu & Kashmir Public Safety Act, 1978, for alleged activities prejudicial to state security. Grounds included alleged association with criminal and terrorist elements. Petitioner alleged non-supply of relevant documents, lack of translation into a language understood, and non-communication of decision on a representation made for revocation of detention. The respondents asserted procedural compliance but could not prove timely communication of rejection of the representation to the detenu. The court found procedural lapses in communication and documentation. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts in the jurisdiction of the High Court of Jammu and Kashmir and Ladakh |
| Persuasive For | Other High Courts and, to a lesser extent, the Supreme Court (as application of existing SC precedent) |
| Follows |
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What’s New / What Lawyers Should Note
- The judgment reiterates and emphasizes that not only must the authorities consider representations against preventive detention orders promptly, but they must also communicate their decision to the detenu without undue delay.
- Failure to prove timely communication of rejection of a representation constitutes a sufficient legal ground to invalidate the detention order.
- The detaining authority’s compliance with procedural safeguards under Article 22(5) of the Constitution is critical—merely claiming to have considered the representation is not enough without evidence of communication to the detenu.
- The judgment provides clear authority for challenging preventive detention where procedural lapses—in communication or document supply—are established.
- Lawyers should ensure that all communication of decisions on representations, including rejections, is through documented and acknowledged means.
- Non-provision of grounds/documentation in a language understood by the detenu may also be a valid ground for quashing detention.
Summary of Legal Reasoning
The Court began by recapitulating the settled legal position that preventive detention statutes, impinging upon individual liberty, must be strictly construed and followed. Relying on Supreme Court precedent (including Sama Arunav., Sarabjeet Singh Mokja, Sukhpal Singh, Madan Lal Anand, and L.M.S. Ummu Saleema), the Judge reiterated that the right to make a representation under Article 22(5) of the Constitution encompasses both the expeditious consideration of that representation and its timely communication to the detenu. Delays or failures in either facet render the detention order unsustainable.
In the present case, the Court found that the detenu’s representation against detention was not promptly communicated after rejection, and supporting evidence of communication to the detenu was lacking. The Court also identified additional procedural defects, including non-supply of translated documents and failure to provide all relied-upon materials. Applying the reasoning from binding Supreme Court authorities, the Court concluded that these lapses violated core constitutional and statutory safeguards and ordered the quashing of the detention order.
Arguments by the Parties
Petitioner
- The petitioner was not supplied with copies of supporting documents and grounds of detention, inhibiting the statutory and constitutional right to make an effective representation.
- Documents were provided only in English, which the petitioner did not understand; no translated copies were supplied.
- The decision on the representation made against the detention was not communicated to the petitioner.
- The detention was based on stale allegations.
- The family was not informed of the detention and the petitioner was not referred to the Advisory Board.
Respondent
- Alleged that the petitioner had links with anti-social and terrorist elements, justifying the need for preventive detention.
- Asserted that all documents, grounds of detention, and warrant were supplied and explained in a language understood by the petitioner at the time of detention execution, with signature obtained as proof.
- Claimed the representation was duly considered and rejected, and the decision was communicated to the petitioner via the Superintendent of Jail.
Factual Background
The petitioner, detained under the Jammu & Kashmir Public Safety Act, 1978, was alleged to have associations with criminal and terrorist organizations, acting in a manner prejudicial to state security. The preventive detention order was passed by the District Magistrate, Udhampur, and approved by the government. The petitioner challenged the detention citing irregularities in the supply and explanation of critical documents, lack of communication regarding the rejection of representation against detention, and failure to provide translated materials in a language understood by the detenu.
Statutory Analysis
The Court discussed the procedural guarantees under Article 22(5) of the Constitution and relevant provisions of the Jammu & Kashmir Public Safety Act, 1978. The judgment emphasized the mandatory requirement to not only allow and consider representations against detention, but to also communicate the decision thereon to the detenu expeditiously. The Court applied a strict interpretation of constitutional and statutory procedural safeguards, drawing on established precedent to determine the vitiating effect of any failure in timely communication.
Dissenting / Concurring Opinion Summary
No dissenting or concurring opinions were noted in the judgment.
Procedural Innovations
No new procedural innovations were set by the judgment.
Alert Indicators
- ✔ Precedent Followed – The judgment closely follows and applies settled Supreme Court precedent regarding procedural requirements for preventive detention orders.