What the high court’s strictures say about abuse of Jammu and Kashmir’s preventive detention law

Since 2019, Ali Mohammad Lone, a 61-year-old lawyer, has been detained four times under Jammu and Kashmir’s draconian preventive detention law.

Lone is a former spokesperson of the banned outfit, Jamaat-e-Islami Jammu and Kashmir. In all, he has spent 1,080 days in custody.

On April 3, the High Court of Jammu and Kashmir and Ladakh not only termed Lone’s preventive detention “illegal” but also ordered the government to pay him a compensation of Rs 5 lakh.

While it is common for the court to strike down preventive detention cases, it is arguably the first time it has ordered compensation to an individual detained repeatedly under the Public Safety Act.

“This court cannot resist but to hold that the preventive detention of the petitioner is mala fide and illegal,” Justice Rahul Bharti said in his judgement in a petition filed by Lone’s son.

Every year, hundreds of individuals in Jammu and Kashmir are detained under the Public Safety Act, which allows the authorities to jail a person considered a threat to “security of the state” without trial for up to two years.

Enacted in 1978 to crack down on timber smugglers in the erstwhile state, the law has become synonymous with the government’s efforts to crush dissent in the restive Kashmir valley. It has been used by authorities to jail separatists, activists, stone-pelters and militant associates.

The Union government used it extensively in the run-up to the revocation of Jammu and Kashmir’s special status in August 2019, detaining 444 people in the erstwhile state, according to data shared with Parliament in February 2020. That included three former chief ministers of the erstwhile state and a sitting Member of Parliament. In 2022, 650 people were detained under the law.

Over the last few months, the high court’s judgments have drawn attention to the sweeping arbitrariness with which the authorities invoke the Public Safety Act.

Scroll examined three such judgements which reveal a pattern of district authorities failing to scrutinise the claims of the police while passing detention orders. Strikingly, even after the courts quashed the detention orders, many were yet to be released.

A self-indicting ‘interrogation

In May last year, Jaffar Ahmad Parray, a 26-year-old youth from South Kashmir’s Shopian district, was booked under the preventive detention law and detained at the Baramulla district jail.

Under the law, a divisional commissioner or a district magistrate can issue a detention order against a person on the basis of a dossier prepared by a law enforcement agency. However, the official must evaluate the police’s version before detaining someone.

According to the grounds of detention made out by the Shopian district magistrate, Parray was alleged to be a “hardcore overground worker of Lashkar-e-Taiba and Hizbul Mujahideen terrorist outfits” who had taken part “in anti-national and anti-social acts prejudicial to the security” of Jammu and Kashmir and the country.

Overground workers is a term used to refer to individuals who provide logistical support to militants, without taking up weapons.

However, there was no police record or case pending against Parray before or at the time of his detention.

The charge that Parray was an overground worker of militant groups was based on his “interrogation” by the Shopian police.

The single bench of Justice Rahul Bharti raised an important question: If Parray was not involved in “a registered criminal act of omission or commission”, on what basis had he been interrogated by the police in the first place?

“...the dossier by the SSP Shopian and the grounds of detention framed by the district magistrate, Shopian, ought to have put it on record as under which authority of law, the petitioner [Parray] came to be first picked up, by whom and then by whom subjected to so called interrogation so as to make alleged revelations,” the court observed.

On March 22, the High Court of Jammu and Kashmir and Ladakh quashed Parray’s preventive detention order.

Picking up an innocent citizen and extracting a confession that implicates him and justifies his preventive detention “would be to concede to a scenario that India is a police state which otherwise it is not by any stretch of imagination or claim”, the high court said.

‘Can’t parrot police’

In two of the three judgements, the high court has criticised the district administration officials for not applying their mind in preventive detention cases.

For example, the high court pulled up the Shopian district magistrate in ordering Parray’s detention without scrutinising the police’s claims. “A district magistrate…is not supposed to parrot the police dictated version in the dossier and serve a detention order on a platter,” the court ruled.

This aspect of lack of application of mind by the detaining authority was visible in the case of Ali Mohammad Lone as well.

The court came down heavily on the senior superintendent of police and the Pulwama district magistrate for ignoring the previous orders quashing Lone’s detention and repeatedly arresting him.

“If three judgments of this court quashing preventive detention have not been spared a passing glance by the SSP, the District Magistrate, and the Government of UT of J&K, how can it be claimed by the three authorities that the fourth-time preventive detention of the petitioner is an outcome of an open and fair mindset?” the court asked.

The court also pointed out the urgency with which the authorities went on to detain Lone.

“The very fact that dossier and the detention order are of same date [September 14, 2022] is a testament to the fact that preventive detention of the petitioner was an outcome of a preconceived mindset, and that was to somehow keep chained the petitioner [Lone] to jail bars even if without any conviction in a criminal case,” the court observed.

Similarly, the high court reprimanded authorities for putting 28-year-old Manzoor Ahmad Bhat of South Kashmir’s Pulwama district behind bars.

A tractor driver, Bhat was detained under the Public Safety Act on September 27, 2022.

The dossier on Bhat prepared by the Pulwama police alleged he was an overground worker of the Lashkar-e-Taiba militant and that he was “providing his home as a hiding place for terrorists”.

The court pointed out that the police had failed to refer “to which home and in which village/town/city the petitioner is alleged to have provided the hiding place.”

Justice Rahul Bharti again pointed out that “a comparative reading of the dossier as well as the grounds of detention would show that the grounds of detention is a carbon copy of the dossier text-wise as well as context-wise,” the court observed.

Free but in prison

The court has also pulled up the authorities for failing to release those whose detention orders have been quashed.

Hameeda Begum’s son, Muneeb Rasool Sherwani, was booked under the preventive detention law on March 20, 2023. Following his detention, he was shifted to a jail in Uttar Pradesh, some 1,500 km from his home in district Baramulla.

Until August 2018, none of the detainees under the Public Safety Act could be lodged in jails outside the boundaries of Jammu and Kashmir. However, that provision was done away with after the last elected government in the erstwhile state collapsed, paving the way for Governor’s rule in July 2018.

Although New Delhi has often spoken about bringing Jammu and Kashmir under the ambit of Indian Constitution, the Public Safety Act is among the 166 laws from the erstwhile state’s constitution that remains in force.

On December 30 last year, a single judge bench of Justice Sindhu Sharma quashed Sherwani’s preventive detention under the Public Safety Act and ordered his release.

However, two months later, tired of waiting for her son’s release, Begum moved a contempt application before the high court. Taking note of Begum’s petition, the high court on March 18, observed that Sherwani’s continued detention was “a serious matter which calls for due indulgence of this Court on urgent note.”

Summoning the district magistrate and senior superintendent of police on the next hearing, the court also directed the district authorities to present the detainee before the court on March 26.

A day before the hearing, Sherwani was released from jail. However, that did not stop the court from making its disapproval known to the authorities about what was a blatant disregard of the court’s directions.

Calling his nearly three-month-long detention – between the day his detention was quashed by the court and his eventual release in March – illegal, the court said it hoped that “such a scenario does not repeat again.”

Back behind bars

There have been multiple instances where detainees have not been released despite court orders.

One of the most recent examples is of journalist Asif Sultan, who had been in jail since August 2018, when he was arrested under the Unlawful Activities Prevention Act. While a trial court granted him bail in April, 2022, he was not released and was instead booked under the Public Safety Act.

On December 7, the high court quashed the 37-year-old’s preventive detention, when he was four months short of completing two years in jail under the Public Safety Act. It took 78 days for him to walk free.

His freedom lasted only a few hours. While he reached home on February 29, he was arrested again the same day in a different case: a 2019 incident of alleged arson and rioting at the Central Jail in Srinagar. He was granted bail in this case in May by a Srinagar court.

Similarly, Lone, who was granted compensation for his illegal detention under the Public Safety Act, is back in prison. Shortly after his release on court orders, Srinagar police said Lone had been arrested in a five-year-old case after he “surrendered”. According to a police statement, Lone was involved in “conspiracy” and “arson, rioting, an attempt at jailbreak, raising anti-national slogans and stone-pelting in Srinagar central jail in 2019.”