For man labelled ‘Lashkar worker’, major relief in J&K court

In a significant ruling, the Jammu and Kashmir High Court has dismissed a Public Safety Act (PSA) charge against a South Kashmir resident, Ishfaq Ahmad Wani, on the grounds that the detention cannot be based solely on labels. The court emphasized that preventive detention must be tied to a factual connection between the individual's activities and the statutory purpose for which the extraordinary power is exercised.

Wani, a resident of Anantnag, was initially booked under the PSA in April last year, with allegations that he was an "OGW" (overground worker) of the Lashkar-e-Toiba. The court noted that the petitioner had already been granted bail in a related criminal case, and the detention order relied on an FIR in the criminal case, even though it had been dismissed.

The court observed that preventive detention is an "exceptional encroachment upon the cherished rights of personal liberty guaranteed in Article 21 of the Constitution." It is not meant to punish someone for actions already committed but to prevent potential harm to the state or public order. The court stressed that the detaining authority must provide specific details connecting the individual's activities to the need for detention, rather than relying on vague labels like "OGW."

Justice M A Chowdhary, who delivered the judgment, found that the District Magistrate of Anantnag had not applied his mind when passing the detention order. The court stated that while the authority's subjective satisfaction is important, it is not immune from judicial scrutiny. The court examined whether the satisfaction was based on relevant material, whether the authority had considered all relevant evidence, and whether there was a connection between the individual's past conduct and the necessity for preventive detention.

The court found that the impugned detention order suffered from a lack of application of mind, reliance on stale and weakened antecedents, failure to consider vital intervening circumstances such as the bail granted to the petitioner, and insufficiently specific grounds to establish the necessary link between the individual's past conduct and the present need for detention. Ultimately, the court ruled that the detention could not be sustained without these foundational issues addressed.