How the Mufti government responds to the Prime Minister’s “anger” over separatist leader Masarat Alam’s release will be determined more by politics than by law. This is because Alam, who has spent most of his adult life in prison under preventive detention, has got bail in 26 of the 27 cases he faces; has been acquitted in the remaining one; and was detained since last September under the Public Safety Act (PSA) without confirmation from the state home department, a mandatory requirement under the Act.
The government had, in fact, realised the irregularity in Alam’s detention in February, when Jammu & Kashmir was under Governor’s Rule.
On February 4, almost a month before Mufti Mohammad Sayeed took over as Chief Minister, the J&K home department wrote to the District Magistrate, Jammu, that “the period of 12 days… has already elapsed, as such, the detention order has become non-est in the eyes of law”.
On March 7, six days after Mufti was sworn in, the Jammu district magistrate wrote to the SSP, Jammu, asking him to “release the detenue if not released as yet”.
The last detention order — the 17th in 24 years — against the now 43-year-old Hurriyat leader under PSA was issued on September 23, 2014 in Jammu. According to Abdul Gani Mir, Inspector-General, Kashmir Range, the home department was required to confirm the detention in the next 12 days. “However, in this case, the home department did not confirm the detention order,” Mir told The Indian Express.
“He (Alam) has been bailed out in every case,” Mir said. “There is no case under Section 302 (murder) against him. Most cases are under various sections of the Unlawful Activities (Prevention) Act,” the I-G said.
Of the 27 cases against Alam, 20 have been registered in Srinagar district, three in Baramulla district, one case each in Bandipore and Jammu, and two cases with the CI, or counter-intelligence cell of the J&K Police, I-G Mir said.
Omar Abdullah — the then chief minister of Jammu and Kashmir who has described Alam as the “chief architect” of the anti-India protests of 2010, and taken credit for keeping him “out of circulation” — declined to comment on Alam’s 2014 detention.
Officials of Abdullah’s government said the failure to confirm Alam’s detention under PSA occurred at a time when the entire state machinery had been paralysed by floods in the Valley.
The J&K PSA, a draconian law that allows a person to be detained without a chargesheet or trial for months, was promulgated in 1978, ostensibly to target timber smugglers. But up to 1990, it was frequently used by governments against political opponents. After the beginning of militancy, the law was used repeatedly to postpone or avoid normal investigations and trial.
A detention order under PSA can be issued by a district magistrate or divisional commissioner, and an individual could initially be detained for up to two years for “acting in any manner prejudicial to the security of the State”, and for up to a year for “acting in any manner prejudicial to the maintenance of public order”. In 2012, these maximum lengths of detention were cut to six months and three months respectively.
The history of Alam’s detention under PSA is as follows:
* 1993: Detained under PSA on similar grounds. He was jailed for more than four years, during which time PSA was invoked repeatedly to keep him in jail. He was released in February 1997.
* Sep 1997: Within six months, he was picked up again, and kept in jail for three years, until May 2000.
* Oct 7, 2003: He was picked up again, and detained until July 2005.
* Apr 22, 2007: Alam was detained for the sixth time and, for the first time, he challenged his detention in the J&K High Court. On October 1, 2007, the High Court quashed the detention.
* Jan 16, 2008: Seventh detention under PSA began. On May 23, the HC quashed the order and Alam was released on May 27.
* Sep 5, 2008: Barely three months later, Alam was put in preventive detention for the eighth time. The grounds were similar to the two earlier orders that had been quashed by the court. On December 27, the HC quashed this detention too, and directed the government to release Alam. The government cited another case filed in Rainawari police station to keep him in custody.
* Jan 21, 2009: A day before Alam got bail from the Additional Sessions Judge, Srinagar, the government used PSA against him for the ninth time. Alam was moved to Udhampur jail. On May 25, the HC quashed the order.
* Jun 9, 2009: The tenth detention order was issued and Alam was sent to Rajouri jail. On August 18, the HC quashed his detention, but Alam was booked under fresh charges. He was released after the court gave him bail.
* Feb 22, 2010: As a result of the eleventh preventive detention order, Alam was sent to Kathua jail. On April 8, the HC quashed the order, and he was released.
On October 18, a case was registered against Alam under the Unlawful Activities (Prevention) Act. The next month, three other cases were registered at three different police stations.
* Dec 11, 2010: Alam was taken into preventive custody “on the apprehension” that he “might obtain bail and continue to indulge in anti-national activities”. He was sent to Udhampur jail. On June 10, 2011, the HC quashed the detention order. Alam was released on July 30, but was immediately re-arrested by the Counter Intelligence Unit for two cases under UAPA.
* Aug 4, 2011: Detention No. 13 under PSA, which was quashed by the HC on December 23. The court said the district magistrate had not applied his mind — the grounds of detention had been copied ad verbatim from the police dossier, and were materially the same as those in the previous quashed order.
* Dec 30, 2011: Order No. 14 under PSA was issued, which the HC scrapped on June 2, 2012. On July 31, the date set by the HC for his release, Alam was arrested by Counter Intelligence, Jammu.
* Aug 3, 2012: The fifteenth detention order under PSA was issued, which the HC quashed on October 19. He was released on October 22, but re-arrested the same day in connection with another case under UAPA.
* Oct 30, 2012: Sixteenth detention under PSA; government called him “an incorrigible secessionist”.
* Sep 23, 2014: The last detention order was issued.
In a petition filed before the Supreme Court in 2012, Alam’s uncle Farooq Ahmed Bhat pleaded that Alam had spent 12 of the 15 years from 1990 to 2005 in preventive detention, during which period, “the State could not conduct a single successful trial against him… or attribute a single act of illegality to him other than conjectures and far-fetched allegations”. Despite orders from the High Court, Alam was slapped with repeated orders of detention “in order to continue to keep him incarcerated”, Bhat said.