After being juggled around for over a year in different lock ups, the Jammu and Kashmir High Court on last Thursday quashed the Public Safety Act (PSA) order against prominent Kashmiri journalist Fahad Shah, terming his detention “illegal” and the “non-application of mind” on behalf of detaining authorities.
A single bench of the Jammu and Kashmir High Court led by Justice Wasim Sadiq Narwal noted that the authorities “did not carefully evaluate and apply their thoughts while passing the detention order”.
“The case at hand is a clear example of non-application of mind,” the court said in its order.
While quashing Shah’s PSA detention, the court also underlined that the scribe was ‘deprived of his constitutional rights’ and wasn’t provided with the dossier of his detention.
Shah was arrested under the draconian UAPA law on 4 February last year by the Pulwama police for allegedly uploading anti-national posts. Then started a Kafkaesque experience for Shah as he was arrested five times within a span of 4 months — subsequently after every bail.
Over 15 months later, despite Shah securing three bails, including two in UAPA cases, and the quashing of the PSA order, he continues to remain in prison in a case registered over an opinion piece that Shah’s newspaper published 11 years ago.
Shah’s arrest had sent shockwaves in the battered Kashmiri journalism community, with several going into hiding or leaving the profession altogether.
“Fahad’s arrest was the last nail in the coffin of independent journalism in Kashmir,” a journalist based in Kashmir said, requesting anonymity. “Prosecutors have attempted to claim that he wasn’t doing journalism, which is just absurd. The shockwaves are still around.”
The court, in its order, said that the non-supplying of the dossier is one of the main lacunae
in the detention of the detenu. “On careful analysis of the record, it is evident that the relevant material i.e., dossier has not been provided to the detenu. The execution report reads that he has been provided with order of detention, grounds of detention and copies of FIRs against him.”
It further added, “Thus, the legal question that arises from this factual position is whether non-supply of dossier to the detenu vitiates the detention order and renders the order bad in law?”
The judge, while quoting several previous judgements, said, “It is a settled position of law that non supply of dossier and other relevant material to the detenu prevents him from making an effective representation before the relevant authorities”
In the order, the judge has also commented on the Srinagar police’s remarks about Shah’s news portal The Kashmir Walla “propagating stories which are against the interest and security of the nation”.
The judge noted that “since the detaining authority has used both the expressions “Public Order” and “Security of the State” with a wavering mind and uncertainty and accordingly the detention order gets vitiated and cannot sustain the test of law and is liable to be quashed.”
“The expressions “law and order”, “Public order” and “security of the State” are distinct concepts, though not always separate. While every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the “security of the State,” read the order.
The court said that the maintenance of public order, security and sovereignty of the country are two distinct expressions and have different connotations and are demarcated on the basis of gravity and “cannot be used simultaneously which clearly proves beyond any shadow of doubt that the detaining authority has not applied its mind while passing the order of detention”.
Quoting a bench judgment of Supreme Court constitution, the court ruled, “The Court has held that every disorder does not meet the threshold of a disturbance to public order, unless it affects the community at large.
While terming the journalist’s detention as “illegal”, it said: A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the “maintenance of public order”. “In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact.”
It said that the apprehension of an adverse impact to public order “is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021”.
The court ruled the nature of the allegations against Shah as “grave”. “However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding,” the order read. “The powers of preventive detention are exceptional and even draconian.”
Shah was being held at Kupwara Jail in north Kashmir under the PSA when the State Investigation Agency (SIA) arrested him on May 20, 2022, for questioning in a case.
Shah’s custody was taken over from the Kupwara jail in order to investigate the SIA’s FIR number 01/2022, which was lodged at the Joint Interrogation Centre in Jammu, against an opinion piece written by Abdul Aala Fazili, a scholar from Kashmiri University, which was published 11 years ago in The Kashmir Walla and titled as “The Shackles of Slavery Will Break”.
However, the agency issued a chargesheet in the case in which Shah and a Fazili are still imprisoned in Jammu’s Kot Bhalwal jail ten months after the arrest.
On 4 February 2022, Shah was arrested by the Pulwama police under sedition and anti-terror law, after The Kashmir Walla reported the events of a gunfight between the government forces and militants in south Kashmir. He was granted bail by the National Investigative Agency (NIA) court in Srinagar on February 26 2022. However, the Shopian police promptly detained him again in a case that was filed in January 2021 against his portal’s reporting.
Shah was released on bail on 5 March 2022, by a Shopian court magistrate, but Srinagar police later detained him again in connection with reporting for his news portal in July 2020. On March 14 2022, Shah was then detained under the PSA and lodged in the Kupwara Jail.