The Jammu & Kashmir High Court while granting bail to an accused under the Unlawful Activities Prevention Act (UAPA) cautioned to beware of the arguments, involving “internal security”, lacking the support of judicially cognizable material, terming them as the “eternal cry of the oppressor”.
The court said an “overbearing” belief in the “primacy of internal security” could lead to the implementation of a “draconian law” resulting in the “denial of liberty”.
Quoting French writer Voltaire, Justice Atul Sreedharan, in an order said that the internal security arguments could become the oppressor’s eternal cry if not backed by substantial evidence.
The division bench of Justice Atul Sreedharan and Justice Mohammad Yousuf Wani was hearing the bail plea of Khursheed Ahmad Lone, an accused under the UAPA, initially arrested in April 2013. He was first booked under the Public Safety Act and placed under preventive detention.The detention was quashed in October 2013. He was again arrested in October 2022 and a charge sheet was filed before a special court accusing Lone and other co-accused in the case of collecting money from people and “influencing youngsters to take to the path of terrorism and wage a war against the Union of India.”
Accusing the state of making “stock arguments” in the case, the judge said that these arguments are “copy paste” in every UAPA related case.
The court order highlighted that “an overbearing subliminal belief in the primacy of internal security of the State in the subconscious mind of the judge, could result in the inadvertent oppressive application of a draconian law resulting in the denial of liberty, unsupported by judicially cognizable material.”
“It is undisputed that there is no disclosure memorandum of the appellant (u/s. 27 of the Evidence Act) and therefore, nothing has been seized at the appellant’s behest,” said the court..
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Slamming the state counsel for “copy paste” arguments, the court said: “These arguments are copy paste in every case under the UAPA. Experience has shown that the main thrust of the prosecution’s arguments is usually on these aspects, rather than the specific material, which appears, against an accused person.”
The court said that the Union Territory’s arguments make an attempt to “psychologically overawe the court by bringing in elements of national security, nationalism, allegiance to Pakistan (of the accused)…radical Islam – Islamist and Islamism, secession of Jammu and Kashmir from India” among other concerns.
The court said: “The question of internal security may be real, or a bogie which the State attempts to compel the Court to believe as real, by impressing upon the Court on aspects of internal/national security and thereby try to get the Court to dismiss the application for bail by contending that the imperatives of internal security demand that the accused remain incarcerated even in the absence of judicially cognizable material against the accused only because there is a suspicion that the accused may be involved in the offense as charged.”
Setting aside the trial court order denying bail to Lone, Justice Sreedharan said that “no prima facie case has been made out by the Union Territory to warrant further incarceration of the appellant as an under trial.”
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However, additional judge of the HC Justice Mohammad Yousuf Wani, noted his disagreement with justice Sreedharan on “paragraphs 7 and 8” the operative parts of the judgment.
Naveed Iqbal is a Senior Assistant Editor at The Indian Express, and reports from Jammu and Kashmir. With a career spanning over 15 years in frontline journalism, Naveed provides authoritative reporting on the region’s transition, governance, and the socio-political implications of national policies.
Expertise
Regional Specialization: Based in the Srinagar and New Delhi bureaus, Naveed has spent over a decade documenting the unique challenges of Jammu and Kashmir. Her reporting is distinguished by deep contextual knowledge of the region's post-Article 370, statehood debates, and local electoral politics.
Key Coverage Beats: Her extensive body of work covers:
Politics & Governance: Tracking the National Conference (NC), PDP, and BJP dynamics, including in-depth coverage of J&K’s first Assembly sessions and Rajya Sabha polls following the reorganization of the state.
Internal Security & Justice: Providing rigorous reporting on counter-insurgency operations, terror module investigations, and judicial developments involving political detainees and constitutional rights.
Education & Minority Affairs: Highlighting systemic issues such as quota rows in J&K, public service commission reforms, and the challenges faced by minority communities. ... Read More
