Constitutional Courts Can’t Sit As Court Of Appeal Over Authority’s Subjective Satisfaction: Jammu & Kashmir & Ladakh High Court Upholds Detention Of LeT Terrorist’s Alleged Lover
The appellant had approached the Jammu & Kashmir and Ladakh High Court challenging the order of detention issued under Section 8 of the Jammu and Kashmir Public Safety Act.
Chief Justice Arun Palli, Justice Rajnesh Oswal, Jammu & Kashmir and Ladakh High Court
The Jammu & Kashmir and Ladakh High Court has upheld a detention order passed against a woman allegedly having a love affair with Musaib Lakhvi, nephew of co-founder of Lashkar-e-Taiba. The High Court also reaffirmed that while exercising the power of judicial review, the constitutional courts cannot sit as a court of appeal over the subjective satisfaction derived by the Detaining Authority.
The appellant had approached the High Court challenging the order of detention which was issued under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. The detention order was passed after noting that her activities were prejudicial to the security of the Union Territory of Jammu and Kashmir.
The Division Bench of Chief Justice Arun Palli and Justice Rajnesh Oswal held, “Respondent No.2 has recorded his satisfaction in respect of activities of the appellant considered prejudicial to the security of Union Territory of J&K and it is settled law that while exercising the power of judicial review, the constitutional courts cannot sit as a court of appeal over the subjective satisfaction derived by the Detaining Authority. Once the Detaining Authority has derived its satisfaction on the basis of material before it, whether the material was sufficient or not, to detain the detenue under preventive detention law, is beyond the scope of judicial scrutiny.”
Advocate Mukhtar Ahmad Makroo represented the Appellant while Government Advocate Jehangir Ahmad Dar represented the Respondent.
Arguments
It was the appellant’s case that she was placed under detention on vague and ambiguous grounds, as no specific date, month or year of the illegal activities attributed to the appellant was mentioned in the grounds of detention.
The Government Advocate representing the respondents argued that the order of detention was passed in accordance with law after taking into consideration the illegal activities of the appellant, who was having love affair with one terrorist Musaib Lakhvi, nephew of Zaki-UR-Rehman Lakhvi, a Pakistani terrorist and co-founder of Lashkar-e-Taiba and one of the prime perpetrators of the 2008 Mumbai attacks.
Reasoning
The Bench noted that it was mentioned in the order of detention that the appellant was an admirer of Lashar-e-Taiba outfit and had acted as an “Overground Worker” of the banned terrorist organization-Lashkar-e-Taiba. It was further recorded that the appellant was having a love affair with Musaib Lakhvi, the nephew of Zaki-Ur-Rehman Lakhvi, who was the co-founder of Lashkare-Taiba and one of the prime perpetrators of the Mumbai attacks.
The Bench took note of the allegations in respect of the appellant developing contacts with PAK based handlers namely, Abu Zehran and Abu Hans, after the demise of Musaib Lakhvi, for providing vital information relating to the movement of political leaders and other protected persons. It was also mentioned in the grounds of detention that the use of VPN’s, encrypted message applications made it extremely difficult to identify the Overground Workers of the terrorists’ organization, and the appellant was identified with painstaking analytics.
It was further noticed that the name of the persons with whom the appellant was in contact was also mentioned in the grounds, and thus it could not be said that the appellant was detained on vague and ambiguous grounds. “A perusal of the grounds of detention would reveal that the Detaining Authority, after taking note of the various illegal activities of the appellant, in the penultimate para of the grounds of detention has mentioned that the ordinary law of the land does not seem to be sufficient to deter the appellant from her nefarious/anti national activities and as such, to maintain the tranquility and integrity of the Union Territory of J&K, it has been become imperative to avail recourse of law”, the Bench mentioned.
On a perusal of the record of the Detaining Authority, the Bench found that the material relied upon by the Detaining Authority was duly provided to the appellant, and she had appended her signature on the receipt of detaining papers as well as on the receipt of grounds of detention. The appellant was also afforded a personal hearing by the Advisory Board, and the Advisory Board opined in favour of the detention of the appellant.
Thus, finding no merit in the intra-court appeal, the Bench dismissed the same.
Cause Title: Shaista Maqbool v. Union Territory of J&K (Case No.: LPA No. 139/2025)