ORDER
R.P. Sethi, J.
1. Peer Hissam-ud-din who is alleged to be notorious and staunch worker of MUF was detained vide detention order No. 218 dt. 8-6-1987 passed by the respondent No. 2. It was alleged that being an Advocate, the detenu remained active in creating contempt against Union of India by openly challenging the accession of the Jammu and Kashmir with Union of India. He is further alleged to have created disaffection among various classes of people living in the State. Vide Annexure A being the grounds of detention, the District Magistrate, Baramulla, after levelling general allegations, informed the petitioner to the following effect:
Quoting the instances of recent riots in Meerut you have been responsible to arrange communal riots in the State and delivered speeches on the following days at various places in Sopore town and adjacent areas.
On 11-2-1987 in a meeting held at Jamia Qadeem Sopore you said that today is the day of Mohd Maqbool Bhat who has been sentenced to death under Indian rule. You incited the shopkeepers to close down their shops so that Delhi administration will come to know his greatness.
On 6-3-1987 after the friday prayers you incited people to organise a procession from main chowk Sopore which went through Sopore and you declared in open public that Indian rule should go now and requested the people to vote in favour of MUF. You also used such words which created disruption and terror in the town.
On 8-3-1987 at Dangerpora a public meeting was organised in which you categorically stated that Indian rule is to be shattered and liberation of Kashmir is to be taken up. You further said that muslims have no place in India.
On 6-5-1987 at Degree College Sopore a meeting was called wherein students participated. You incited the Youths on this occasion that Muslims are not safe in the State. They should fight on the name of religion and Islam should prevail. You asked the students to fight and hold an hartal.
On 22-5-1987 you incited people to go for hartal and close down their shops in protest of incidents at Meerut. You openly created communal frenzy in the minds of young people and said that violence should be resorted. You quoted instances of Meerut and Delhi so that people would come to communal riots.
On 29-5-1987, prior to Idd prayers, you again reminded young fold the incidents of Meerut and openly said that Muslims in India and State are not safe and declared that people should inhilate (annihilate?) Hindus which created terror in the town.
2. The detention of the petitioner has been challenged on the grounds that the amendment made in the Jammu and Kashmir Public Safety Act, 1978, was ultra vires of the provisions of Constitution of India, the statutory protection against the preventive detention as enshrined in Part III of the Constitution as made applicable to the State of Jammu and Kashmir have been flouted. It is alleged that the detention order was never served on the detenu in accordance with the law and the documents mentioned in the grounds of detention were not supplied to him. The grounds of detention and the specific allegations made against the detenu were vague and indefinite. It is further submitted that certain allegations levelled in the grounds of detention do not stand the test of scrutiny which renders the detention of the detenu illegal. As the detention of Peer Hissam-ud-din is in contravention of the provisions of the Constitution of India, the same is prayed, to be quashed and the detenu released forthwith.
3. In the counter affidavit filed by the District Magistrate, it has been admitted that the detenu has been detained under the provisions of Public Safety Act. It is further submitted that the detention order has been confirmed but does not mention as to vide what Government order and on what date. It is submitted that the provisions of Public Safety Act are legal and intra vires of the Constitution. The grounds of detention are valid, legal and according to the Statute. It is claimed that the grounds of detention were supplied to the detenu along with relevant FIR on 18-5-1987 against proper receipt by the Dy. Superintendent Sub-Jail, Heeranagar which were explained to him in all the languages which he understood. It is alleged that the acts and statements detailed in the grounds of detention were sufficient to hold that the detenu was an anti-national element and responsible for creating disaffection in the minds of minority community which makes his detention imperative.
4. I have heard the learned Counsel for the parties. Despite directions of the court dt. 4-11-1987, the relevant record pertaining to the detention of the detenu has not been produced by the learned Government Advocate.
5. Relying upon a judgment of this Court given in Habeas Corpus Petitions Nos. 27, 28 and 29, it is contended by the learned G.A. that the present petition for seeking the release of the detenu deserves dismissal. I had held in the aforesaid judgment:
A perusal of Section 10-A of the Act would show that even though any one or more grounds is found to be vague, non-existent, not relevant, not connected or not proximately connected with the detenu or was invalid for any other reasons whatsoever, yet the detention order of a detenu could not be held liable to be quashed by any court. It further shows that none of the grounds of detention would render the order invalid on the grounds of its being vague, non-existent, not relevant, not connected or not proximately connected with the detenu or being invalid for any other reasons whatsoever. Section 10-A in fact appears to have been legislated to over come the difficulties faced by the executive on the basis of judgments of various High Courts and Hon’ble Supreme Court of India. In view of Section 10-A of the Act, the detention of the detenus cannot be quashed on any of the grounds urged by the learned Counsel for the petitioners. Section 10-A of the Act is in fact a complete reply to the arguments of the learned Counsel appearing for the detenus. I refrain from making any comment on the vires of Section 10-A at this stage because the same has not been challenged in any of the writ petitions nor did the learned Counsel for the petitioners urged at the bar regarding its constitutionality despite being reminded that in view of the provisions of Section 10-A, it may not be possible for this Court to grant any relief to the detenus. As the grounds of detention in these cases are severable and none of the grounds can be held to be vague, non-existent, not relevant, not connected or not proximately connected with such person or invalid for any other reasons whatsoever under Section 10-A of the Act, the submission of the learned Counsel cannot be accepted for the purposes of quashing the detention of the detenus in these cases.
6. Mr. S.T. Hussain the learned Counsel appearing for the petitioner has however relied upon the aforesaid judgment and submitted that in view of the correct law laid down by this Court, it was necessary to examine the vires of Section 10-A of the Jammu and Kashmir Public Safety Act. He has submitted that as Section 10-A of the Act is in contravention with the provisions of Arts. 21 and 22 of the Constitution of India, the same is liable to be quashed. It is alleged that as the guarantees provided in favour of a citizen under Article 22 of the Constitution have not been fulfilled, the detention order is liable to be quashed.
7. In order to examine the argument of the learned Counsel regarding the constitutionality of Section 10-A of the Jammu and Kashmir Public Safety Act, it would be proper to refer to the different provisions of said section.Section 10-AoftheActprovides:
Section: 10-A
Grounds of detention severable : Where a person has been detained in pursuance of an order of detention under Section 8 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly
a. such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are
i. vague
ii. non-existent,
iii. Not relevant,
iv. Not connected or not proximately connected with such person, or
v. Invalid for any other reasons whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Section 8 with reference to the remaining ground or grounds and made the order of detention.
b. the Government or officer making the order of detention shall be deemed to have been made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.
8. I do not agree with the learned Govt. Advocate that the validity of Section 10-A of the Jammu and Kashmir Public Safety Act cannot be adjudicated by this Court because the same has been passed by a competent legislature or and in its absence by the Governor in exercise of his legislative powers. Now it is well settled that the validity of a law may be questioned even on the ground of its being outside the legislative powers of the legislature and may also be challenged on the ground of its being repugnant to any of the fundamental rights guaranteed by the Constitution besides other objections. Among the other objections would come an objection that the law challenged amounts to a delegation of legislative powers to the executive which would be in contravention of the provisions of the Constitution . The vires of a statute regulating the preventive detention has, therefore, to be tested on the touchstone of the guarantees of fundamental rights as enshrined in Part III of the Constitution. The mere fact that a legislature has passed a law regarding the preventive detention would not prevent the courts from examining its legality, constitutionality or otherwise as our country is governed by the rule of law and the courts are the custodians of the constitutional rights of the citizens who have a right to see as to whether the impugned legislation is not in contravention of the provisions of the”., constitution and the legislature have not misused the legislative power conferred upon it by the Constitution. No legislation can be upheld if it deprives the citizens of their fundamental rights. The power of judicial review is inherent in our Constitutional system. The Supreme Court in A.K. Gopalan’s caseAIR 1950 SC 27 : 51 Cri LJ 1383 for the first time examined the different provisions of the Preventive Detention Act, 1950, and held that Section 14 of the said Act was ultra vires of the Constitution. It was held that when it is found that express constitutional provisions limiting legislative power and controlling the temporary will of a majority by “a permanent and paramount law settled by the deliberate wisdom of the nation and if an enactment infringes such guarantee or rights conferred, the Courts would be competent to declare void any legislative enactment. The court can search for the objective intent of the legislature primarily in the words used in the enactment, aided by, gi}ch historical material as reports of statutory sommittees, preambles, etc., for the purposes of ascertaining the constitutionality of an enactment. Under these circumstances the argument of the learned Government Advocate is rejected.
9. Preventive detention in democratic set up is a serious invasion of a personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power have to be jealously watched and enforced by the courts in this country. . Preventive Detention is not a punishment for the past activities of a person but is intended to prevent a person detained from indulging in future activities which are mentioned in a particular statute governing the preventive detention of the citizen, as such detention means a complete negation of freedom of movement and of personal liberty. There is no authoritative definition of the term of preventive detention in Indian Law though as description of a topic of legislation it appeared in the legislative list of the Government of India Act, 1935 for the first time and has been used in item 9 of List I and item 1 of list III in Schedule 7 of the Constitution. The expression has its origin in the language used by the Judges or the law Lords in England while explaining the nature ot detention under Reg. 14(B), Defence of Realm Consolidated Act, 1914. The word ‘preventive’ is used in contradistinction to the word ‘punitive’. It is not a punitive detention but in fact a precautionary measure A.K. Goppalan’s case . In case of punitive detention, the person concerned is detained by way of. punishment, after he is found guilty of wrong doing as a result of a trial where he has every opportunity to defend himself under the law of the land while preventive detention is intended to pre-empt a person from indulging in any conduct injurious to the society. The detenu is detained merely on suspicion with a view to prevent him from doing harm in future and the opportunity that he has for contesting the action initiated against him is very limited. Having regard to the special character of preventive detention, the restrictions placed on a person under law relating to preventive detention, must consistently with the effectiveness of the detention, be minimal. AIR 1981 SC 746 : 1981 Cri LJ 306. Power to detain is primarily intended to be exercised in such rare cases where the larger interests of the State demand that the restrictions be placed upon the liberty of a citizen curbing his future activities. Such restrictions therefore, should be consistent with the object of detention and be minimum. . The concept of personal liberty is a matter of great constitutional importance in our system of governance . The liberty of a citizen being a most precious freedom is sedulously secured by our Constitution. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22 of the Constitution regulates the freedom of and movement and provides for the law regarding the preventive detention. Our Constitution perhaps is the only Constitution which makes provision in itself regarding the law of preventive detention.
10. Article 22(5) of the Constitution provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Upon a combined reading and interpretation of Arts. 21 and 22 of the Constitution, itemerges that no citizen in this country shall be detained or deprived of his personal liberty without compliance of the provisions of law and the constitutional guarantees as enshrined in Part-III of the Constitution. Some of the rights arising and flowing out of the aforesaid constitutional provisions admitted and acknowledged by different courts in the country are:
a. No citizen would be detained except under the authority of law.
b. The detaining authority shall communicate to such person the grounds on which the said order was made as soon as may be.
c. The grounds shall be accompanied with such particulars which are sufficient to enable the detenue to make an effective representation.
d. The grounds of detention must be consistent with the object of the statute
governing the preventive detention of the citizens;
e. Detention order must be passed for the object contemplated by the Constitution and the Statute governing such detention;
f. The detention order should appear to have been based on the subjective satisfaction of the detaining authority;
g. Preventive detention should not be the result of the mala fide action of the executive and should not have been passed in a routine and. mechanical manner;
h. The preventive detention should not be resorted to as a measure of punishment for the past acts of a citizen and should be intended to prevent such person from acting in a manner prejudicial to the security of the State or the public order:
i. Grounds of detention should not be vague, non-existent, not relevant and not connected with the object of the enactment and of detention of a citizen.
11. The rights arising out of and under Arts. 21 and 22 of the Constitution are in fact the constitutional guarantees to a citizen against the preventive detention. Any enactment which takes away the constitutional guarantees of a citizen is unconstitutional and is liable to be quashed. Under these circumstances Section 10-A of the Jammu & Kashmir Public Safety Act takes away all such rights which arise out and flow from the constitutional guarantees depriving this Court of its powers of judicial review regarding the executive action taking away the personal liberty of a citizen. Section 10-A of the Act in effect and in essence amounts to negation of the powers of the judicial review of this Court. As Section 10-A of the Act has taken away all such rights which arise out and flow from Arts. 21 and 22 of the Constitution, the same is liable to be quashed. I agree with the contention of the learned Counsel for the petitioner that the provisions of Section 10-A of the Jammu and Kashmir Public Safety Act are unconstitutional being in contravention with the provisions of Arts. 19, 21 and 22 of the Constitution as made applicable to the Stateof Jammu and Kashmir. However I do not agree with Mr. Hussain that invalidity of Section 10-A of the Act renders whole of the Jammu and Kashmir Public Safety Act unconstitutional because the invalidity of this section would not affect the rest of the provisions of the enactment which relate and pertain to the detention of citizens independent of this section as was held by the Hon’ble Supreme Court in A.K. Gopalan’s case (supra) (51 Cri LJ 1383).
12. Looking at the grounds of detention served upon the detenu I am of the opinion that even though the detenu has been described to be notorious, anti-national and secessionist, yet there is nothing on the record to show that any of the grounds mentioned in Annexure A with the petition is based upon any material fact or that the petitioner was supplied with the material which would have facilitated him to make an effective representation as contemplated under Article 22(5) of the Constitution of India. The reckless manner in which the detenu has been detained is apparent from the counter affidavit of the concerned District Magistrate wherein material facts have been left in blank and not filled. The court has not been provided with any record to show that the petitioner was served with the grounds as contemplated under Article 22(5) of the Constitution of India and allowed to make an effective representation. Even the order of confirmation of the detention of the petitioner as alleged in para No. 1 of the counter has not been produced in the court. The respondents have also not produced the relevant record showing their justification for detaining the petitioner on the vague grounds alleged by them. No citizen in the country can be deprived of his personal liberty in a.casual manner as has been done in the instant case. The manner in which the case of the petitioner has been handled and dealt with shows that the respondents are not seriously interested in his detention for the purposes as contemplated by the Public Safety Act. The impugned order is, therefore, unconstitutional and liable to be quashed.
13. Under these circumstances the petition is allowed and detention order No. 218 dt. 8-6-1987 pertaining to Peer Hissam-ud-din son of Peer Mustafa resident of Adipora Sopore is hereby quashed. The respondents are directed to set the detenu namely Pir Hissam-ud-din son of Pir Mustafa resident of Adipora-Sopore at liberty forthwith, if he is not involved in any other case. The petitioner is held entitled to the payment of costs also which are assessed at Rs. 500/-.
