Unexplained 43-day delay in deciding detainee’s representation violates Article 22(5); J&K High Court quashes PSA detention

In brief

The question

Whether the petitioner’s representation against preventive detention was considered and disposed of with the expedition mandated by Article 22(5) of the Constitution and Section 13(1) of the J&K Public Safety Act, 1978.

The court held

The Court held that the unexplained delay of approximately 43 days in considering and rejecting the petitioner’s representation violated the safeguard guaranteed under Article 22(5) of the Constitution.

It also directed

The petition was accordingly allowed, and Detention Order No. DMR/PSA/01 of 2026 dated 1 January 2026 was quashed. The respondents were directed to release the petitioner forthwith from preventive custody, subject to his not being required in connection with any other case.

01Facts

The petitioner, Basharat Mehmood, challenged Detention Order No. DMR/PSA/01 of 2026 dated 1 January 2026, passed by the District Magistrate, Rajouri under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, on the ground that his detention was necessary to prevent acts prejudicial to the maintenance of public order.

¶ 1 · p. 2

The record showed that the petitioner’s representation was submitted on 15 January 2026, forwarded by the Home Department to the ADGP, CID, J&K on 21 January 2026, and rejected only on 5 March 2026, resulting in an unexplained delay of approximately 43 days.

¶ 8 · p. 4

02Issues

i.Whether the petitioner’s representation against preventive detention was considered and disposed of with the expedition mandated by Article 22(5) of the Constitution and Section 13(1) of the J&K Public Safety Act, 1978.

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ii.Whether the unexplained delay in deciding the representation invalidated the detention order and rendered the petitioner’s continued preventive detention unsustainable.

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iii.Whether the detention order suffered from non-application of mind, absence of compelling circumstances, and reliance upon vague, stale, or mechanically reproduced grounds.

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03Law Applied

The Court applied Article 22(5) of the Constitution, which guarantees a detenue the right to be informed of the grounds of detention and to make an effective representation, together with Sections 8 and 13(1) of the J&K Public Safety Act, 1978.

Relying on K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476, the Court reiterated that a representation by a preventive detenue must be considered as expeditiously as possible.

¶ 9 · p. 4

It further relied on Sarabjeet Singh Mokha v. District Magistrate, Jabalpur, (2021) 20 SCC 98, which held that unexplained delay in deciding a detenue’s representation violates fundamental procedural safeguards and cannot be justified by the pendency of proceedings before the Advisory Board.

¶ 10 · pp. 4–5

Provisions in the judgment · 3

Jammu And Kashmir Public Safety Act, 1978 Section 8Section 8Section 13

04Reasoning

The Court found that the petitioner’s representation, submitted on 15 January 2026, was rejected only on 5 March 2026, despite being forwarded to the ADGP, CID on 21 January 2026. This constituted an approximately 43-day delay, for which the respondents provided no cogent, convincing, or satisfactory explanation.

¶ 8 · p. 4

Applying Article 22(5) and the principles in K.M. Abdulla Kunhi and Sarabjeet Singh Mokha, the Court held that the obligation to decide a representation expeditiously is an independent constitutional safeguard and not a procedural formality.

¶ 9–12 · pp. 4–5

Since preventive detention seriously curtails personal liberty, the unexplained delay defeated the petitioner’s constitutional right to have his representation considered with a sense of immediacy.

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