FAYAZ AHMED RATHER Vs. STATE OF J&K
LAWS(J&K)-1993-3-9
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 31,1993

Fayaz Ahmed Rather Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (1.)THE fundamental rights and guarantees envisaged under Part -Ill of the Constitution as applicable to the State of J&K would remain only meaningless and futile and will be reduced to paper hopes and fleeting promises, if the same are at stake and are not being properly and effectively enforced by the court/safeguards by the courts, who have to do job of judicial review of the administrative actions. So whenever there is violation of a guaranteed fundamental right, it is the duty of the High Court to enforce and protect the same under the powers vested in it under Article 226 of the Constitution, just like Supreme Court under Article 32 of the Constitution. The High Court under the provisions of Article 226 of Constitution have not only to see the safeguard of a fundamental right of the person aggrieved, but even to safeguard the illegal invasion of the fundamental right and thus to enforce and safeguard the fundamental right.
(2.)THE High Court of J&K further stands invested with the powers of issuing appropriate writs even under the Constitution of the J&K State U/s 103.
(3.)THE present day mass turmoil which has started from fag end of 1989 and necessitated the authorities at the helm of affairs to take recourse to enforcement of Public Safety Act and also depriving of the personal liberties of the people who have been detained in prisons/jail and interrogation centres, cannot be lost sight of. But the fact remains that one of the fundamental rights which has been guaranteed by the Constitution as applicable to the State of J&K. enshrined in Article 21 do speak :
"Protection of life and personal liberty : No person shall be deprived of his life and personal liberty except, according to procedure established by law."

So when the authorities resorted to deprive person/individual of their personal liberties, number of cases came up in the form of writ of habeas corpus asking for disclosure of law and authority under which the person stand arrested and also for production of the person alleged to have been arrested in due course of law or otherwise. The heavy institution in both the wings of the High Court of J&K on this score speaks about the magnitude of the persons alleged to have been arrested/detained or taken in the interrogation, centres by the authorities. The authorities seem to have drafted detention orders in a mass manner, as has been experienced by me for a couple of months, when the writs of habeas corpus and other writs challenging the detention/arrests by the lawyers, relations of the detenue came up for consideration. The way in which the orders of detention have been made in a mass manner, the writ petitions drafted by lawyers or the relations of the detenues or even by the detenues themselves from their respective places of detention, have also been made in whole -sale mass manner.



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