Detaining govt critics is abuse of PSA: Jammu and Kashmir HC quashes journalist’s detention

Dar, who writes under the name Sajad Gul, was arrested by the J&K Police on January 6, 2022 for posting a video of a slain militant’s family raising anti-India slogans on his social media handle.

While a local court granted him bail, the J&K police then booked him under the PSA, which allows for detention without trial for up to two years.

In a judgment setting aside a single-judge HC bench’s order, a division bench of Chief Justice Kotiswar Singh and Justice M A Chowdhary said there was “no specific allegation” against Dar to show his activities could be “prejudicial to the security of the State”.

“The detaining authority, itself, has admitted that the detenu, having done Masters in Journalism, was working as a Journalist (Media Reporter) and it was his professional/occupational duty to report the happenings in his area, even including the operations of the security forces. Such a tendency on the part of the detaining authority to detain the critics of the policies or commissions/omissions of the Government machinery, as in the case of the present detenu, a professional media person, in our considered opinion is an abuse of the preventive law.”

Charges listed in Dar’s PSA dossier included him “being well educated”, which would enable him to “use social media as a tool to provoke against the government establishment”; “less reporting about welfare” of Jammu and Kashmir; controversial tweets; and “working upon the directions of Pakistani agents and use to tweet against the Union of India from the tweeter [Twitter]”.

The court said: “The grounds of detention nowhere suggest/reveal that the detenu had, at any point of time, filed/uploaded any false story/reporting based not on true facts. It is nowhere stated as to how the detenu had disrupted the public order creating any alleged enmity, inasmuch as, there is no specific instance in any of the allegations levelled against him to show that he had been working against the national interests, so as to be prejudicial to the security of the State.”

“While going through the records, this court finds an observation of the detaining authority that the detenu had been a negative critic towards the policies of the Government of the Union Territory of Jammu & Kashmir and that his tweets used to provoke the people against the Government. This cannot be said to be a ground to be relied upon that a true and factual media report can provoke people against the working of the Government, that too without any specific instance as to how his tweets had caused any problem, much less public order problem with the Government,” the court said. “In the grounds of detention, it has also been referred that the uploading of the news items by the detenu, as a journalist, had created enmity and acrimony against Government machinery, however, there is no specific instance as to which of the posts/write-ups are there as being so and on what date. The appellant has been, now, in preventive detention since the 16th day of January, 2022.”

Dar, who has a Bachelor’s degree in Communication, was pursuing a Master’s course in Journalism from the Central University of Kashmir when he was arrested.

In Shah’s case, the bail order was pronounced in virtual mode by Justices Atul Sreedharan and Mohan Lal, said Jahanzaib Hamal, an advocate who assisted senior advocate PN Raina during the court hearing.

He said the Bench also quashed charges levelled against Shah under Section 18 of the Unlawful Activities (Prevention) Act and Sections 121 and 53-B of the IPC. While the first Section relates to terror conspiracy, the last two pertain to waging war against the nation, and accusations and assertions prejudicial to the integrity of the nation.

Shah will still face trial under Section 13 of the UAPA for allegedly abetting unlawful activities and Sections 35 and 39 of the Foreign Contribution (Regulation) Act, 2010. Of these two provisions, the former is related to illegally receiving foreign funds and the latter pertains to offences by companies.

Justice Wasim Sadiq Nargal of the J&K and Ladakh High Court had in April quashed the detention of Shah under the PSA, saying the authorities did not follow the procedural requirements in letter and spirit. The Justice said the detaining authority gave no “compelling reasons” for detaining him under preventive detention when he was already in police custody in a case and no bail had been granted to him in that matter.

Shah was held under the UAPA after J&K’s State Investigation Agency registered a case  at CIJ police station in Jammu on April 4, 2022. This came nearly 11 years after the publication of an article titled ‘The shackles of slavery will break’ in his magazine. The article was written by a Kashmir University scholar, Abdul Aala Fazili, who, too, has been arrested.

A chargesheet was filed in the case in the NIA Court at Jammu in October last year and charges were framed against Shah and Fazili in March this year. In the chargesheet, SIA had stated that on April 4, 2022, it received from a “discreet but reliable source” a printout of the “highly provocative” and “seditious” article.

Shah was booked for the first time in May 2020 for his coverage of a militant encounter wherein he quoted locals accusing security forces of taking away their belongings. Security forces denied the charge.

He was booked again on January 30, 2021 over an article in The Kashmir Walla, allegedly stating that security forces pressured the management of a private school in Shopian to organise a Republic Day function. The Army denied the charge and lodged a complaint against him. Shah had got bail in this case as well.

He was also booked in an FIR registered at Pulwama police station on the charge of incorrect reporting about the killing of three militants.