The Jammu and Kashmir High Court has quashed the detention of journalist Peerzada Fahad Shah, the editor-in-chief-cum-director of digital news portal ‘Kashmir Walla’. Justice Wasim Sadiq Nagral observed that the detention order should be set aside since it not only had technical infirmities but also since the detaining authority did not apply its mind while issuing the order. Peerzada was arrested for publishing an article written by Kashmir University scholar Abdul Ala Fazili titled “The Shackles of Slavery Will Break” on April 4 2021.
Background of the case
Peerzada was placed under preventive detention under the Jammu and Kashmir Public Safety Act by the District Magistrate vide order dated March 11, 2022.
It was submitted on behalf of Peerzada that he is a reputed journalist having earned a good name and fame on international level in the field of honest and fair journalism while also being a peace loving citizen. It was contended that the allegations against him are baseless and vague and without any iota of truth to them. Peerzada was arrested on February 4, 2022 by Pulwama Police and booked him under Section 13 of UAPA [whoever advocates, abets, advises or incites the commission of, any unlawful activity], Section 124A [sedition] and Section 505 [Statements conducing to public mischief] IPC. In this case, Peerzada was granted bail and and when the order of the Court was served upon the police concern, they did not release him and shifted him to the Police Station Imam Sahib Shopian where on the same set of allegations, another FIR was registered. Once again he was granted bail and once again shifted to another Police station namely, Safakadal, Srinagar where one more FIR on the same set of allegations was registered and then a detention order under PSA was passed against him.
The Government Advocate, Sajjad Ashraf submitted that Peerzada was detained validly and legally by virtue of detention order and all statutory requirements and Constitutional guarantees have been fulfilled and complied with. He further submitted that the grounds of detention give a clear picture and the activities of the detenu were highly prejudicial to the maintenance of public order and respondents had no option but to detain him. It was also submitted that detenu was found involved in various anti-national nefarious activities.
After analysing the record, the court found that relevant material or dossier was not provided to the detenu. Relying upon Supreme Court’s decision in Icchu Devi Choraria vs Union of India (1980) 4 SCC 531 , the court held that non-supply of dossier and the relevant material vitiates the detention order and cannot sustain the test of law and is liable to be quashed. In the said case, the apex court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference. The right of the detenu to be supplied, copies of such documents, statements and other materials flow directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention because unless the former right is available the latter cannot be meaningful. (Para 26)
Public order and state security not interchangeable
Another question raised by the court was “Whether the concepts of “public order” and “security of state” are distinct and separate”. The court cited G. M. Shah vs. State of J&K AIR 1980 SC 494, where Supreme Court had held that “law and order”, “Public order” and “security of the State” are distinct concepts, though not always separate and 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. (Para 29)
The court held that the detaining authority “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.” (Para 33)
The court observed that the ground of detention in one place mentions that activities of the detenu leads to disturbance of public order and in concluding part it mentions that the detenu’s activities are prejudicial to security and sovereignty of the country. The court thus observed that the detaining authority did not carefully evaluate and apply their thoughts while passing the detention order.
Under section 8 of the PSA, “public order and 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” (Para 36).
The court held thus,
“From the perusal of grounds of detention, it is manifestly clear that the same are vague and bald assertions without any specific details with the result that the detenu was unable to file a meaningful and effective representations. Besides the specific averment of the detenu that he has not been provided copy of the dossier and other relevant material including copies of FIRs which have been referred and relied by the detaining authority while framing grounds of detention and passing the detention order against the detenu, has not been specifically denied by the respondents and is also borne from the record.” (Para 36)
The court also found the action of the respondents to be violative of Article 22(5) of the Constitution read with section 13(2) of PSA.
Article 22(5) reads as follows:
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
Section 13(2) of PSA reads as follows
13. Grounds of order of detention to be disclosed to persons affected by the order-
(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose
Procedural requirement not followed
Further, another procedural requirement was not fulfilled since the person who executed the detention order did not swear on affidavit. The court relied on Supreme Court judgement in Abdul latief Wahab Sheikh Vs. B. K. Jha, 1987 (2) SCC 22 where the court held that the procedural requirements are the only safeguards available to detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority.
No compelling reason
The court further held thus,
“That no compelling reasons have been given or shown by the detaining authority while passing the impugned order against the detenu when he was already in custody in pursuance of FIR 70/2020 in which no bail has been granted. In absence of any compelling reasons, the order of detention cannot sustain the test of law.” (Para 39)
The court thus quashed the detention order of March 2022 and Peerzada was ordered to be released forthwith.
The complete judgement may be read here: