Mohd. Yousuf v. State of Jammu and Kashmir

CourtThe Supreme Court of India
Date of Judgment10th  August, 1979
Citation1979 AIR 1925, 1980 SCR (1) 258
BenchP.N. Singhal J. R.S. Sarkaria, J. O. Chinnappa Reddy J.
AppellantMohammad Yousuf  Rather
RespondentState of Jammu and Kashmir and Others

Introduction

In this case, the petitioner provoked the people and as a result, many houses were burnt down, and many people are injured. After this whole incident, an FIR filed against him, and a request for detainment went against him by the lower court. The Court fulfilled that the exercises of solicitor were exceptionally biased to open security and Lawfulness. Petitioner was not allowed to exercise his fundamental right of making a representation under Article 22 of the Indian Constitution.  In this case, the writ petition filed by the petitioner challenged the validity of his detention order. The order of detention of the petitioner, Mohd. Yousuf Rather was made by the District Magistrate of Anantnag District on April 12, 1979

Relevant Section

Constitution of India – Article 19, 19(1) d, Article 21, Article 22, Article 22(5), and Article 32.

Factual Background

On 29-3-1979 banners were discovered stuck on dividers in Kulgam zone, which were got distributed by the CPI (ML), the flags were inscribed ‘Inqalab ke bager koi hal nahin’. The substance of the banner, in addition to other things, uncovered that it made a notice of referendum saying that the interest was surrendered with ulterior intentions. It further expressed that the individuals ought to set themselves up for unrest. He was looking the same actions as well the “Instructive” jobless youth who had as of late gone on a yearning strike at Anantnag. In this association, a case an FIR No. 34/79 U/s 395, 436, 148, 307 and so on has been enrolled at Police headquarters Kulgam against you and others. Property worth thousands have so far been recouped during the examination of this case.

The consequence of this entirescenario is, an FIR was documented against him and a request for detainment went against him by the lower court. The Court fulfilled that the exercises of solicitor were exceptionally biased to open security and Lawfulness.         

The grounds of confinement have honestly been sent to the applicant by the method of an annexure to the Area Officer’s organization No. 49-54/ST dated April 12th, 1979. It has been expressed in that that the confinement has been requested on “the grounds indicated in the Annexure…which likewise contains realities applicable to it,” and the solicitor has been educated that he may make a portrayal to the Legislature against the request for detainment on the off chance that he so wants.

You are a stalwart Naxalite, and you are famous for your exercises which are demonstrating biased to the upkeep of open request. You are prone to sort out gatherings, the mystery just as open, in which you affect the individuals to make disorder which spreads alarm in the brains of everyday citizens. You are additionally answered to be prone to go from one town to the next, to constrain the retailers to shut down their shops and take an interest in the gatherings. You are accounted for the crusades beginning late in towns and asking the occupants not to sell their additional paddy yield to the Government if they are constrained to do as such, they ought to abuse the Government authorities deputed to buy on intentional premise from the locals”.

Question of Law

The Petitioner challenged the detention order. The Petitioner was not allowed to exercise his fundamental right of making a representation under Article 22 of The Indian constitution, whether the detention of petitioner is vague or not?

Judgment

Justice P.N. Singhal delivered the judgment –

The petitioner was detained because the campaign begun late in towns inquiring the tenants not to offer their new paddy crop to the Government and to abuse the Government authorities in case they were compelled to do so. There’s, in any case, no say, in any other portion of the annexure, of the petitioner’s inquiring the tenants not to offer their paddy trim anyplace else or to abuse the Government authorities deputed for its buy.

The Court held that it doesn’t express the spots where the applicant is said to have sorted out the gatherings, or the idea of disorder incited by him. It doesn’t likewise specify the names of the towns where he is supposed to be prone to go for convincing the retailers to shut down their shops and to partake in the gatherings. So likewise, it doesn’t refer to the towns where the applicant was accounted for to have “as of late” began the crusade asking the occupants not to sell their additional paddy, or to abuse the administration authorities. This was undoubtedly very vague.

The Court held that the grounds of detention, that in the wake of convincing the retailers to shut down their shops on February 9, 1979, the candidate sorted out a gathering at Chowalgam and requested that the members hold up dissent against the treatment allotted to Shri Z. A. Bhutto, and that while in truth the petitioner didn’t have any compassion toward the late Executive of Pakistan, he did it with the aim intending to abusing the circumstance and to make rebellion. We have referred to cl. (b) of sub-Sec. (3) of Sec. 8 of the Demonstration which characterizes what is implied by “acting in any way biased to the support of open request” in sub-s. (1) of that area, however, the ground of detainment referenced in this doesn’t fall inside the domain of any of the four provisions of cl. (b) as it doesn’t express that the applicant advanced, engendered, or endeavoured to make sentiments of hatred or disdain or disharmony on the grounds of religion, race, rank, community, or locale, or that he made preparations for using or attempting to use, or using, or instigating, inciting, provoking, or otherwise abetting the use of force in a manner which disturbed or was likely to disturb the public order within the meaning of sub-clause (i) and (ii) of cl. (b).

According to the grounds of detention, the petitioner arranged a meeting in Kulgam. In this meeting, he passed defamatory comments against sheikh Mohmmad Abdullah, the Chief Minister of State; and General Zia of  Pakistan, and he said that Sheikh Abdullah likewise needs to turn in to a despot. That charge additionally doesn’t fall inside of the four sub-provisions of clause b of sub-section 3 of Section 8, as it doesn’t allude to advancing or spreading or endeavouring to make sentiments of hostility or contempt or disharmony on the grounds of religion, race, position, network or area or creation of arrangements for utilizing or attempting to use, or utilizing, or prompting, actuating, inciting or other-wise abetting the utilization of power in any way at all. For this charge additionally, the staying two sub-conditions are of no significance.

What has been asserted is that the petitioner expressed in his discourse at the Kulgam meeting that the individuals of the State had been mistreated, that he reprimanded the Central Clergyman for their persecution, and that he requested that his crowd “evade the life of shame and rise against abuse.” It has not been expressed that the candidate consequently advanced, proliferated or endeavoured to make sentiments of hostility or disdain or disharmony on the grounds of religion, race, position, community, or locale, or that he affected or instigated or incited the crowd to utilize power. Serene and legal revolt, shunning savagery, is one of the notable methods of looking for a change in this nation. A substantial part of the statement of facts mentioned in paragraph 3 of the grounds of detention is therefore irrelevant, and it cannot justify the order of detention u/s. 8 of the Act.

It has been expressed that concurring to section 4 of the grounds of detainment, a banner was found glued on dividers in Kulgam zone on March 29, 1979, within the sticking of which the petitioners had a hand. The blurb was captioned “Inqilab ke baghair koi hal nahin”, and it specified that the request for the plebiscite was given up with covert thought processes. It advance said that individuals ought to plan themselves for transformation. But indeed on the off chance that it was expected that the solicitor had a hand in glueing the blurb, which is affirmed to have been distributed by the CPI (ML), it cannot be said that he subsequently acted in any way biased to the support of open arrange, for his affirmed activity did not drop inside the domain of any of the subclauses of cl. (b) of sub-sec (3) of s. 8 of the Act. Separated from the truth that it has not been expressed that the blurb advanced, or propagated or endeavored to form sentiments of ill will or contempt or disharmony on the grounds of religion, race, caste, community etc., it has also not been stated that the poster instigated, incited, provoked or otherwise abetted the use of force to amount to acting in any manner prejudicial to the maintenance of public order. As has been stated, a revolution can be brought about by peaceful and lawful means, and asking the people to prepare themselves for it cannot be a ground of detention under s. 8.

It has been stated that according to paragraph 5 of grounds of detention, the candidate was seen affecting the informed jobless youth who had gone on hunger strike at Anantnag, to show the unclearness of that ground. It might additionally be expressed that it is a significant unimportant ground likewise because any such affectation couldn’t be said to fall inside the domain of cl. (b) of sub-sec (3) of Sec 8.

It is well settled that ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention under the appropriate law. It nevertheless appears that the aforesaid unrelated grounds were taken into consideration for making the impugned order, and that is quite sufficient to vitiate it.

Chinnappa Reddy J. –

The Court held that in the third passage of the grounds of detainment, it is said that the detenu gave a discourse in which he requested that his crowd evade the life of shame and rise against persecution.

In the fourth section, he is expressed to be liable for banners bearing the subtitle “No arrangement without upset”. It is likewise shown that the flags approached the individuals to set themselves up for unrest. Presently, articulations like ‘revolt’ and ‘transformation’ are flung about by one and all in all way of setting, and it is difficult to connect a specific essentialness to the utilization of such articulations. Each betrays the foundation is called “revolt”, and each new thought is named as “progressive”.

On the off chance that the insignificant utilization of articulations like “revolt”, and ‘transformation’ is to land an individual behind bars, what might be the destiny of every one of our administrators? Everything relies upon the setting wherein the articulations are utilized. Neither passage three nor section four of the grounds of detainment indicate the specific type of revolt or unrest which the detenu pushed. Did he actuate individuals to viciousness? What words did he utilize? What, at that point, is the association between these fields and “acting in any way biased to the upkeep of the open request”? There is no response to be gathered from the fields discussed in passages three and four which should like this, be held to be both unessential and dubious.

In passage five, it is said that the detenu induced taught jobless youth to go on a yearning strike. An appetite strike, in our nation, is a notable type of peaceful dissent. However, it is hard to interface it with the open issue. We consider this ground likewise to be ambiguous and insignificant. The claim that the detenu offered injurious comments about Sri Sheik Mohammed Abdullah,  Chief Minister of Kashmir, and contrasted him and General Zia of Pakistan appears to us, once more, to be altogether unessential. I don’t think it is essential to allude to all the grounds in any further detail as Shinghal, J has finished that.

Analysis

“If the freedom of speech is taken away, then dumb and silent, we may be led, like sheep to the slaughter.”

                                                                                             – George Washington

The Public Security Act (PSA), 1978, of Jammu and Kashmir is a regulatory detainment law that permits the imprisonment of any person for as long as two years without a preliminary or charge. The Open Wellbeing Act considers the capture and confinement of individuals without a warrant, explicit charges, and frequently for an unknown timeframe.

Yet, at times, the Demonstration makes arrangements for the kept individual to be educated about the explanation of authority, and offers them a chance to present a defence against their detainment to the administration. Be that as it may, the confining body isn’t required to uncover any realities “which it considers being against the open enthusiasm to reveal”. This Demonstration stretches out to the entire of Jammu and Kashmir.

Jammu and Kashmir Public Safety Act 1978

Amusingly, Sheikh Abdullah presented the law in 1978. In any case, it’s motivation was extraordinary. It was brought in to preventing timber smuggling and keep the runners in jail. This is a preventive confinement law that permits the State government to keep an individual as long as two years without a preliminary. It is like the National Security Act However, this was sanctioned two years before the NSA appeared.

In the wake of the Pulwama assault, scores of prisoners were hit with this law, and J&K Senator Satya Buddy Malik had endorsed a correction to move prisoners to correctional facilities outside the State. Hurriyat pioneers like Masarat Alam, JKLF pioneer Yasin Malik have additionally been confined under this law.

Under this Act, no right to apply of  Bail

The kept individual doesn’t reserve the privilege to move a bail application under the steady gaze of the Court, and can’t connect any attorney to speak to the person in question the keeping authority.

According to the Section 8 of this Act:

It provides a vast number of reasons for detention, ranging from “promoting, propagating, or attempting to create, feelings of enmity or hatred or disharmony on the grounds of religion, race, caste, community, or region” to incitement, instigation, abetment and actual commission of such acts, and leaves it to district collectors or district magistrates to decide, giving a 12-day period within which an advisory board has to approve the detention.

Supreme Court on Public Safety Act

The Supreme Court has held that while keeping an individual under the PSA, the District Magistrate has a lawful commitment to breaking down all the conditions before denying that individual of his/her freedom.

It has likewise held that when an individual effectively under police guardianship is hit with the PSA, the DM needs to record “convincing reasons” for keeping that individual.

While the DM can confine an individual on different occasions under the PSA, the individual needs to deliver new realities while passing the resulting detainment request.

Likewise, all the material based on which the confinement request has been passed, the Incomparable Court has held, ought to be given to the kept individual to making a convincing portrayal.

The grounds of confinement needs to disclose and impart to the individual in the language comprehended by the kept individual.

Preventive detainment forced for the most part as an expectant measure and doesn’t identify with an offence, while criminal procedures are to define an individual for an offence carried out by him. The primary method of reasoning behind the preventive confinement isn’t to rebuff;  however, to keep the prisoners from State any crime against the State. Preventive detention is against the theory of democracy because it is a violation of Fundamental Rights.

The result of this legislation is that two Chief Ministers were also detained under the controversial act. If detention is according to Human rights and for the safeguard of law and order, so this could be valid in benefit at large. If fundamental rights are discarded and brought in to detention, this is a great threat of democracy. If speaking against the government policy, exercise the right of strike and awakening the public are the grounds of detention, so we need to consider about this.

At present, the security act has become misused and uses this as a weapon whenever Government feel a threat to their dominance

Detention can be needed in National Interest, but, if the citizens of same nation are prevented from exercising fundamental rights and detaining him if they criticize the policies of the government, then this is a murder of soul of the Constitution of India.

Conclusion

John Stuart Mill, in his essay[1], ‘On Liberty’ said “The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign”. While answering the question regarding the tussle between liberty and authority, Mill said that the authoritarian rule could be reined by the recognition of fundamental rights such as the right to privacy, free speech and expression, and right to assemble.

The Jammu and Kashmir Public Safety Act 1978, is a preventive detention law, under which a person is taken into custody to prevent him or her from acting in any manner that is prejudistate to the security of the State and maintenance of the public order.

In this case, the authority misused his power and detained the petitioner and expelled from his right to representation under Article 22 of the Indian Constitution. The Petitioner filed a plea under Article 32, and the Court held that the grounds of the detention are vague.

References


[1] https://www.libertarianism.org/columns/introduction-john-stuart-mills-liberty

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