Tashi Rabstan vs State of J&K and others

Orders of detention passed against S/Shri Thupstan Chewang, Rigzin Yaksha, Tashi Choosgial, Tsering Dorjey alias Jugnoo, Sonam Anchok,

Nawang Chosghil, Wangial Punchok and Thufstan Dawa under the J&K Public Safety Act, 1978 have been challenged in these petitions. The

orders are alleged to be liable to be set aside on the grounds of having been passed in a mechanical manner, the grounds of detention are vague

and ambiguous, the grounds of detention even if admitted do not make a case of maintenance of public order justifying detention, the detention

orders have been passed in colourable exercise of the powers of the respondents and misuse of the authority of the Government with a view to

allegedly supress peaceful nonviolent agitation of Ladakhies. Section 13 of the J&K P. S. Act is alleged to have been violated in as much as the

grounds of detention were not supplied to the detenues within the time specified under law and that the petitioners have been denied the

opportunity of making effective representation against the order of detention.

Narrating the facts and circumstances leading to the filing of the present petition it is submitted that the detenues are residents of Ladakh and

belong to Budhist 'religion. It is alleged that the State Government has been adopting an attitude of discrimination deliberately and purposely against

Ladakh Region forcing them to strive for redressal of their legitimate and genuine grievences. It is submitted that the Ladakhies have resorted to all

legitimate and peaceful means to bring the attention of the State as well as Central Government about the problems being faced by them but their

grievences were never redressed. They have been carrying on peaceful and nonviolent struggle to achieve justice, equity and fairplay but without

any success. It is submitted that Ladakh Budhists recently again started a peaceful, nonviolent agitation in keeping with the letter and spirit of the

Constitution and following principles of Mahatma Gandhi adopted the, peaceful methods for the achievement of their demands. In view of the

alleged discrimination meted out to them, they have resolved to struggle for creation of Ladakh Region as a Union Territory within the Union of

India and parameters of the Constitution with the purpose to ensure that the discriminatory policies of the State of Jammu & Kashmir are put to an

end. It is alleged that the peaceful agitation of the Ladakhies was resolved to be supressed by the State Government and its functionaries in

furtherance of which respondent No. 2 passed the detention orders against the detenues referred to hereinabove which include Sh. Thupstan

Chewang President of Ladakhi Budhist Association.

In response to a quary made by the Court an affidavit has been filed in support of the writ petitions stating that all Ladal hi Budhists were firm

believers and practitioners of total and absolute secularism and do not harbour any illwill or malice against either Sunni Muslims or any other

community. It is further stated on oath that the Budhists have been engaged in a peaceful nonviolent agitation to achieve their rights and have never

indulged in any act of communalism what so ever. The detenues are claimed to have greatest respect to all faiths and religions and have further

declared that they would not do nor have even done any act to hurt any religious feeling of any community or an individual. The struggle launched

by the Ladakhies is stated to be against the policies of the State Government and not against |any community or any individual.

Despite opportunity granted no counter affidavit has been filed on behalf of the respondents. However the learned Govt. Advocate has placed

on record para wise reply in these writ petitions which is not supported by any affidavit. In the interest of justice the parawise reply has been

allowed to be placed on record and the learned Govt. Advocate permitted to make submissions on its basis.

In the parawise reply filed on behalf of the respondents it is submitted that the State Govt. had never adopted an attitude of discrimination

against the Ladakh Region or Budhist community. The people of Ladakh region have much scope of progress in every sphere of life. The genuine

grievences of the people of the area have always been looked into sympathetically by the State Government particularly with respect to the matters

relating to socioeconomic development. Mass agitations organised in Ladakh since past are alleged to have been of violent nature. It is submitted

that Ladakhi Budhist Association was formed in the year 1935 and Sh. Thupstan Chewang was elided its President in 1989. The agitation

presently launched by the Ladakhi Budhist Association is of violent nature and aimed at against Muslim community and Kashmiri Government

employees working in Leh District. The association is alleged to have been indulging in violence, threatened and intimidated the muslim community

and Kashmiri employees in the District. It is submitted that they have caused extensive damage to Government property, the details of which are as

under :

No. of taxis owned by Muslims which have been des troyed/damaged : 39

No. of trucks owned by Muslims which have been destroyed/damaged : 24

No. of houses belonging to Muslims which have been burnt down/damaged:32

No. of Muslims families rendered homeless as a result of their houses being burnt/damaged : 23

No. of SRTC buses destroyed/damaged : 2

Approx. value of Govt. property destroyed : Not assessed yet.

The activities organised by the Association disturbed the public order to such extent that the respondent No. 2 was forced to detain eight persons

under the provisions of Public Safety Act. The detention orders are claimed to be cogent, legal and valid under law. It is further submitted that in

the light of the repeated criminal and prejudicial activities of the detenues, it had become imperative for respondent No. 2 to pass the detention

orders. There has not been any violation of Articles 19, 20, 21 and 22 of the Constitution as alleged by the petitioner. The Ladakhi Budhist

Association is alleged to have wiped up communal tension and hatred to such a deep extent in the District of Ladakh after 1979 that there was

virtually break down of public order in many areas of the District. As a result of the activities of the Association attacks were organised on the lives

and properties of the Muslims whose houses were burnt and they were rendered homeless, number of taxis and trucks belonging to the Muslims

from Leh District and Kashmir were destroyed. The social and economic boycott of the Muslim community was also enforced by the Association.

It is submitted that at least 120 refugees are still camped in Leh Town. In addition Muslim Govt. employees were physically intimidated and forced

to leave their places of posting all over the District. It is submitted that the detention orders were passed only when the respondent No 2 was

personally satisfied that the presence at large of the detenues would be detrimental to the maintenance of the Public Order in the District. The

action of the respondent No. 2 is claimed to be a legitimate exercise of the authority and in the interest of the public order, The detention order is

alleged to have been passed on 291989 and the grounds of detention were served upon the detenues on 791989 after obtaining a proper receipt

and compliance of the provisions of Sec. 13 of the J&K Public Safety Act. The grounds of detention are alleged to have been readover and

explained to the detenues in the language hey understood after informing them that they can make the representation to the Government if they so

desire. The allegation of the petitioner that the detention of the detenues in Srinagar is dangerous to their life and health has been denied. The order

of detention is claimed to be legal, valid and according to law requiring no interference from this court.

I have heard the learned counsel for the parties and perused the record.

As the facts and grounds of detention in all the petitions are almost identical and the points of law raised being common, these petitions are

disposed by one single judgment.

In a democratic system governed by rule of law conferring fundamental rights upon the citizens the civil liberties cannot be deprived without

adopting due course of law. In A. K. Gupalan Vs. State of Madras, (AIR : 1950 P SC : 27) the apex Court in the country held that the personal

liberty of the citizen has been recognized as a fundamental right guaranteed under Articles 19, 21 and 22 of the Constitution. The civil liberties can

be curtailed in the interest of the society and for securing the liberty of the intended victims. The restraints on such liberty have to be judged not

only subjectively as applied to few individuals but also objectively as securing the liberty of a far greater number of individuals. Social interest in

individual, liberty may have to be subordinated to other great social interest. At the same time the liberty has also to be guarded against executive,

legislative as well as judicial usurpation of power and prerogatives. The Constitution of India itself envisages the preventive detention under

specified conditions and for the purpose of the security of the State or public order. The power conferred upon the executive under the preventive

detention law is not so vide as to authorise them to put behind bars any one they regard as dangerous or roudish or irrespressible or difficult of

being got rid of by proof of guilt in Court, (AIR 1972 SC 1670). In Bhut Nath Vs. State of West Bengal : MR 1974 SC 806 : it was held that the

detention power cannot be quitely used to subvert, supplant or to substitute the punitive law of the Penal Code, It was further held that the immune

expedient of throwing into a prison cell one whom the ordinary law would take care of merely because it is irksome t) undertake the inconvenience

of proving guilt in Court is unfair abuse. Even undesirable persons are entitled to the protections of laws and the benefits of fundamental rights.

However the arrest, prosecution or pendency of a criminal trial is no bar to the District Magistrate to pass the detention order if the authority is

convinced that trial may not serve the purpose of preventing a man acting in a manner prejudicial to the security of the State or the public order.

The principle of construction and interpretation in matters relating to preventive detention is in favour of the subject and against the State, the only

exception being where the detention is sought for the security of the State. As and when the detention is challenged in a court of law, the detaining

authority is under a legal obligation to satisfy the Court that the power has been used for the purposes of the preventive law strictly in accordance

with the procedure established and has not been misused for ulterior, unconnected purpose and in a mechanical manner (AIR : 1966 SC : 740). ,

Section 8 of the J&K Public Safety Act authorises the Government and the detaining authority to direct detention if satisfied that the same was

necessary to prevent a citizen from acting in any manner prejudicial to the security of the State or the maintenance of public order or the

maintenance of Supplies and Services essential to the community. The power can also be used with respect to a foreigner or a person residing in

the area of the State under the occupation of Pakistan with a view to regulate his continued presence in the State or with a view to make

arrangements for his expulsion from the State. ""Acting in any manner prejudicial to the maintenance of public order"" has been defined to mean :

i) promoting, propagating, or attempting to create, feelings of enemity or hatered or disharmony on grounds of religion, race, caste, community, or

region; .

ii) making preparations"" for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise abetting the use of force where such

preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order;

iii) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of, mischief within the meaning of

section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;

vi) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of as offence punishable with death

or imprisonment for life or imprisonment for a term exceeding to seven years, or more, where the commission of such offence disturbs, or is likely

to disturb public order.

The detenues in these cases have been directed to be detained under section 8(l)(a)(i) of the P. S. Act for the maintenance of public order.

It has been argued on behalf of the learned counsel for the detenues that the grounds of detention even if admitted and held to be not vague,

would show that the detenues have been deprived of their civil liberties not for the purpose of maintaining public order but at the most to preserve

law and order. The distinction between ""maintenance of public order and law and order"" was considered by the Supreme Court in Pushker

Mukerjee and Ors Vs. State of West Bengal (69) 2 SCR 636, in Dr. Ram Manohar Lohia Vs. State of Bihar and Ors. AIR 1966 SC 740 and in

Kusosah Vs. State of Bihar : (1974) I SCC 185 : it was held :

The two concepts have well defined contours, it being well established that stray and unorganised crimes of theft and result are not matters of

public order since they do not tend to affect the even law of public life. Infractions of law are bound in some measure to lead disorder but every

infraction of low does not necessarily result in public disorder. As observed in Pushkar Mukherjee and Ors Vs. The State of West Bengal, a line of

demarcation must be drawn between serious and aggravated forms of disorder which directly affect the community or injure the public interest and

the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public

interest. In Dr. Ram Manohar Lohia Vs. State of Bihar and Others, Hidayatullah, J., has expressed this concept picturesquely by saying that one

has to imagine three concentric circles representing public order and the smallest circle represents the security of State ""Law and Order

comprehends disorders of less gravity than those affecting ""Public Order"" just as ""public order"" comprehends disorders of less gravity than those

affecting ""security of State"".

It has to be, therefore, seen in these cases as to whether the grounds of detention served upon the detenues stand the test of amounting to

prejudicial to the ""public order"" as settled by the Supreme Court or merely are intended to preserve ""law and order"". As ""Law and Order

represents the largest circle within whose ambit the public order is comprehended depending upon the gravity of the situation affecting the security

of the Society. Right to form Associations and to agitate for the redress of the grievences or achievement of demands within the frame work of the

Constitution and in a peaceful manner is a recognized fundamental right in this country. Disturbances and some sort of loss not affecting the society

as a whole is normal wear and tear of the agitations and struggles carried on within the parameter of the Constitutional limits without endangering

the security or integrity of the country. The detenues in these cases are alleged to be the members of Ladakhi Budhist Association stated to have

been formed in the year 1935 and not having indulged in any anti national, communal or subversive activity prior to the start of the present agitation

allegedly for the achievement of their demands claimed by them to be genuine and alleged to be without any basis by the State. A perusal of the

grounds of detention served upon the detenues and the parawise reply riled on behalf of the respondents shows that the allegations made therein

are in fact against the Association which has neither been declared illegal nor banned under any provision of law. The detenues are alleged to have

been detained by the orders passed by the detaining authority on 291989 bearing same Number being JC13(M)PSA/89. It is alleged in the

preliminary para of the grounds of detention that the detenues were the office bearers or activists of the Ladakhi Budhist Association and have

launched a movement to expell Sunni Muslims from Ladakh by subjecting them to persecution. It is alleged in almost all the grounds of detention

that the activities prejudicial to the alleged public order were started by the detenues on or about 27th August, 1989 when some inflamatory

antikashmiri speaches were made in Gompa Soma and the restriction imposed under section 144 Cr. P. C. were defied. Cases were registered

against some of the detenues who had allegedly committed offences punishable under the Penal Code. Shri Thupstan Chewang who is alleged to

be the President of Ladakh Budhist Association is stated to have delivered a speach inside the Gompa provoking the people resorting to violence.

It is again submitted that some secret meeting was held by the members of the Association wherein it was resolved that Sunni Muslims be harassed

by the Budhists so that they leave Ladakh for good. It also transpires from the grounds of detentions that various FIR being FIR Nos. 100/89,

138/89, 52/89, 10289, 128/89, 23/87 and others were registered against the detenues. The casual manner in which the State authorities have

chosen to contest these petitions have prevented this Court from appreciating the allegations made in the aforesaid FIRs to ascertain their nature

and gravity Even in the parawise reply as distinguishable from counter affidavit, the respondents have not been in a position to show that the acts

complained or the grounds alleged against the detenues were intended to serve the purpose of the act warranting detention for the maintenance of

the public order. From the perusal of the grounds of detention the allegations made in the parawise reply and the position of law as settled by the

highiest Court in the Country. I have come to the conclusion that the detenues were not directed to be detained for the purposes of Act namely

preventing them from acting in any manner prejudicial to either the security of the State or the maintenance of public order. The grounds of

detention alleged against the detenues in fact make out a case of law and order which was required to be dealt with by the authorities under the

ordinary law without having resort to the provisions of preventive detention. It is worthwhile to mention that the detaining authority has neither in the

order of detention nor in the grounds has stated any where that the criminal trial of the detenues was not possible or likely justifying their preventive

detention. It is settled that preventive detention is not a substitute of a punitive action and cannot be resorted to mechanically as appears to have

been done in the instant case.

The learned Government Advocate has referred to a judgment of the Supreme Court : AIR : 1952 SC 343 to justify the action of the

respondents in detaining the detenues. After perusing the judgment I am of the opinion that the said authority of the Supreme Court has no

relevance even remotely to the facts and circumstances of the case or the points of law involved.

As the detention of the detenues has been held to be against the provisions of the Jammu & Kashmir Public Safety Act as contained in Section

8 of the Act, there is no necessity of deciding other points raised by the learned counsel for the petitioner.

The main allegation of the respondents has been that the detenues were guilty of creating hatred between different communities by resorting to

violence and instigating people to force the Sunni Muslims of Ladakh Area to abondon their residence and business. These allegations have been

denied on affidavit as referred to hereinabove. The respondents have not placed anything of the record to show that the detenues were in any way

responsible for creating communal tensions or forcing the Sunni Muslim community to leave Ladakh area. I have no reason to disbelieve the

affidavit filed on behalf of the detenues and am hopeful that the detenues would stand by the averments made in the affidavit and show by their

deeds that they were believers and practitioners oft secularism, harbouring no illwill or malice against the Sunni Muslims or any other community

and would continue their agitation if permissible. under law in a peaceful and nonviolent manner to achieve their legitimate rights within the frame

work of Constitution and the limits of law.

Under these circumstance; these petitions are allowed and the detenues namely S/Shri Thupstan Chewang son of Sonam Tsepd resident of

Shey, presently Chanspa, Rigzin Yaksha son of Tashi Norbu resident of Chanspa Leh, Tashi Choosgial son of Sonam Tashi resident of Housing

Colony Leh, TSering Dorjey alias Jugnoo son of Tashi Dorjey resident of Goksam Leh, Sonarri Anchok son of Isey Namgial resident of Sakara,

Leh, Nawang Ckpsghial son of Tashi Paldam resident of GoksamLeh, Wajigial Punchok son of Nawang Galson resident of LikeerLeh and

Thufstan Dawa son of Sonal Kangsar resident of Leh, are directed to be set at liberty immediately provided they are not required in any other

case. Shri Thupstan Chewang is reported to be on parole and in view of this judgment he will not be redetained and is not obliged to surrender

before the authorities in connection with the detention orders quashed in these petitions. The petitioner is also held entitled to payment of Rs. 300/

as costs in each petitions. CMP Nos. 1928, 1929, 1930, 1931, 1932, 1933 and 1934 of 1989 are also disposed of.

The Dy. Registrar is directed to placed a copy of this judgment on each file.