The Jammu Kashmir and Ladakh (JK&L) High Court has invalidated a case filed under the Public Safety Act (PSA), the Union Territory’s strict preventive detention law, while directing the authorities to pay Rs five lakh rupees compensation to the detainee.
This, legal experts told The Quint, forms a rare occasion where the judiciary has not only delivered a sharp rebuke to the authorities for illegally detaining an individual under the law but also made a case for his restitution, bringing the debate over the controversial law back into the public domain.
As J&K gears up for elections, the use of the PSA has also turned into a poll plank of sorts with politicians coming to blows with each other over who booked more people under the PSA in the past.
“The petitioner has been made to suffer the loss of his liberty for a cumulative period of more than 1080 days of preventive custody covered under the span of four detention orders in a row from 2019 to ending March 2024,” the judgment by Justice Rahul Bharti in the case of Ali Mohammad Lone, an advocate and former spokesperson of the banned outfit Jamaat-e-Islami (JeI), read.
Lone was arrested just days after the Modi government outlawed JeI under Unlawful Activities (Prevention) Act, 1967 in February 2019, on the grounds that it supported militancy in J&K.
The Court has also directed the respondents (District Magistrate Pulwama and Senior Superintendent of Police Pulwama) to pay a compensation of Rs five lakhs “within a period of three months from the date of this judgment.”
Legal experts said that while it was not the first case in J&K that the Court had ordered compensation in the case of illegal detention, it was certainly rare. In Bhim Singh vs State of J&K 1986, the Supreme Court had ordered the J&K government to pay Rs 50,000 as compensation to politician and former Lok Sabha member Bhim Singh for detaining him unlawfully.
'A Lawless Law'
The PSA is a controversial law that allows the police to detain individuals for a duration between six months and two years depending on the grounds of detention. The use of the PSA has come under criticism from various quarters, with Amnesty International calling it “a lawless law.”
The J&K authorities, however, have defended it saying that the law helps them keep militants and their associates “out of circulation” to prevent the terrorist attacks and avoid grave law and order situations.
The law was introduced in the State in 1978 by the former Chief Minister Sheikh Abdullah to fight timber smugglers. After the Modi government scrapped Article 370 and brought the legal architecture of J&K to par with the rest of the country, it still retained some of the older statutes such as the PSA. Critics say it did so because the PSA is a more stringent law than its national counterpart, the National Security Act (NSA).
Last week's judgment comes at a time when the regularity of PSA cases appears to be dwindling in J&K, raising questions on whether the government is relenting on the widespread use of the unpopular law ahead of the Lok Sabha elections.
In 2023, more than 450 PSA cases were filed in J&K, of which 250 were slapped against drug traffickers and 201 against militant associates. In 2022, J&K police filed 649 PSA cases. The prevalence of the PSA is also ascertained by determining the number of habeas corpus (h/c) petitions that JK&L High Court receives every year.
As per the data that this reporter was able to obtain, as many as 507 High Court pleas were filed in 2019 — a number which grew to 841 in 2022. In 2023, however, the number came down to 107. This year so far, the JK&L High Court has entertained 56 h/c pleas, 52 of which have a pending status while 4 have been disposed of.
However, the lawyers caution that low numbers could also be because J&K Police has also started the trend of arresting drug traffickers preventively and not many offenders prefer to file h/c petitions. “My two clients who were booked under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PIT NDPS) preferred not to challenge their orders,” one lawyer at District Court Srinagar said.
Court Questions Government's Logic
While quashing his PSA, the Court argued that Lone had already been booked under the same law thrice on the same grounds. “Upon scratching below the surface, there is nothing in the name of reasonableness and rationality to be found in the impugned grounds of detention and in the impugned order of the detention,” the judgment reads.
The first PSA against Lone, who was a legal advisor to the JeI when it was active, as well as its press and publication chief, was filed in March 2019. However, the High Court quashed the PSA in November of the same year. Nine days later, a second PSA was invoked against the accused. The Court quashed it in March 2020 amid the outbreak of the COVID-19 pandemic.
Three months later in June, however, J&K authorities slapped a third PSA against him. Lone remained under preventive detention for eight more months, for this case, until the judges quashed it in February 2021. However, Lone wasn’t released.
Revolving Door Detention
His family members told The Quint that Lone was booked under a 2009 FIR involving a public speech that was followed by law and order disturbances. “He was bailed in the summer of 2021 and was staying with family for more than a year,” the family member said. In September 2022, the authorities invoked a fourth PSA case against him.
The State’s argument, as quoted in the judgment, is that Lone was a “hard-core element propagating Islam in his own way to achieve ulterior motives including instigating the youth to carry out the activities which are said to be prejudicial to the integrity of the State and by that was able to manage joining of various innocent youth into militancy.”
The Court, however, has questioned how the authorities could slap a fourth PSA case on identical grounds despite the previous three being quashed by the judges.
The order observed that if previous judgments have not “been spared a passing glance” by authorities, how can they claim that the fourth case “is an outcome of an open and fair mindset acting upon a changed factual scenario?”
Reversing the Trend
This is not the first time, in recent weeks, that the judiciary in J&K has railed against the authorities over the alleged misuse of the PSA.
Last month, the JK&L High Court under the same judge — Justice Rahul Bharti — quashed the PSA detention of 26-year-old Jaffar Ahmad Parray, a resident of the Shopian district in South Kashmir. While the police in its dossier had called Parray a hardcore terrorist supporter, Justice Bharti observed that there was no reference to the “petitioner being involved in a case registered under some FIR.”
The judgment also called into question the administration’s rationale behind the detention arguing that admitting it in the court “would be to concede the scenario that India is a police state.”
Last month, the regional press in J&K reported at least 5 additional cases where the JK&L High Court nullified the PSA detention.
The Rising Graph of Terrorism Cases
Since the revocation of Article 370 in 2019, the Modi government has been dogged by criticism that it has intensified the political repression in the erstwhile State, with the graph of cases filed under the PSA and UAPA soaring significantly.
Amnesty International, in its 2022 report on J&K, had criticised the judiciary in J&K arguing that the High Court takes more than a year to dispose of the habeas corpus (h/c) petitions challenging the detention orders under the PSA in comparison to the situation before August 2019 when such pleas would be disposed of within six or seven months.
“The courts are in a way satisfying the two-year limit provided in the PSA for administrative detention. They delay the hearing of cases without giving appropriate reasons. It is unfortunate because courts were our only respite against the arbitrary detention orders passed under the PSA,” the report quoted a lawyer saying
Legal Community Praises Verdict
Last year, this reporter accessed the documents of the office of Registrar General of the court which suggest how the delays in hearings may have something to do with the 2019 decision of “rationalising” the nomenclature at the court pursuant to which h/c pleas were filed under the category of Writ Petition Criminal WP (Crl).
However, the court later reverted to admitting these cases under habeas corpus (h/c).
The latest slew of judgments have been praised by the legal community in J&K. “There may be situations where it demands to curtain someone’s personal liberty but the same must be exercised under law otherwise it will be considered illegal,” said Mohsin Dar, a lawyer at JK&L High Court at Jammu. “The officers holding the charge of detaining people under the PSA must be strictly dealt with for detaining people without following the due course of law.”
Aasif Wani, a lawyer from the northern Kashmir town of Baramulla said that procedural requirements are the only safeguard available to the detainees in the case of the PSA which is why it is important for the judiciary to remain attentive when cases of preventive detentions are brought.
Wani said that while there are a lot of habeas corpus petitions that aren't reaching the stage of the hearing, verdicts like these reinforce a sense of accountability among the authorities, limiting the scope of misuse.
“Unfortunately, in many instances, detention orders are merely rubber-stamped. Each month, the Court nullifies numerous orders due to detaining authorities failing to exercise their independent judgment,” he added.
(Shakir Mir is an independent journalist. He has also written for The Wire, Article 14, Caravan Magazine, Firstpost, The Times of India and more. He tweets at @shakirmir. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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