Right to challenge detention an independent right, not circumscribed by statutory provision: Gujarat HC

In a significant judgement, the Gujarat High Court has held that "the right to challenge the detention order is an independent right which accrues to a detained person and is not circumscribed by any statutory provision providing for safeguard."

The court opined that classifying a person “dangerous” or “prejudicial to maintenance of public order” in a "rhetorical incantation" can’t be sufficient to use “draconian” powers of preventive detention. It also said that such classification based on two FIRs, as prescribed under Prevention of Anti-social Activities Act (PASA), 1985 is a “gross abuse of conditional power of preventive detention.”

The division bench of chief justice Vikram Nath and Justice J B Pardiwala passed the judgement on a petition moved by Haidarsha Abdulsha Pir, a resident of Bhuj in Kutch district, through his son Nizamuddin. Haidarsha was detained under PASA on the basis of registration of two FIRs against him.

Under PASA, a person can be detained up to a year by the order passed by a police commissioner or district magistrate. Such orders are passed on proposals moved by concerned police based on FIRs and complaints against the person. These orders are also sent to the advisory board of PASA for their opinion.

Pir had challenged his detention before a single bench which rejected the plea saying that his case was being looked into by the advisory board and he should have waited for final outcome. The board is the final authority that rejects or accepts the proposal for detention. The petitioner challenged the single judge’s order before the division bench which granted him relief.

The division bench led by justice Nath held that high court should not reject writ petition that challenges legality and validity of an order of preventive detention on the ground that the detenue has “an alternative remedy of preferring a representation addressed to the Advisory Board.”

The bench stated that “The right to challenge the detention by a person cannot be abridged or curtailed by saying that until such time the Advisory Board gives its opinion, the challenge thereto has to wait.”

The bench cited the person who is detained without being produced before the magistrate (within 24 hours), can’t be told to wait till the board gives its opinion. “The right to challenge the detention order is an independent right which accrues to a detained person and is not circumscribed by any statutory provision providing for safeguard,” the judgement states.

It adds that “To classify the detenue as a dangerous person, effecting public order because of registration of two cases, referred to above, is a gross abuse of the constitutional power of preventive detention.” These observations came barely ten days after the Gujarat government passed a bill in the Assembly widening the ambit of PASA by including repeat sexual offenders, cybercriminals and gambling under it.

The division bench also made a suggestion that hearing of a petition challenging preventive decisions should be treated as Habeas Corpus petition and to be heard by division bench rather than a single bench.