A Cycle of Prolonged Detentions

Caught in an endless cycle of multiple cases, this is the story of many journalists battling for bail after bail to ensure their release from prison.

Since 2018, several Kashmiri journalists – Fahad Shah, Aasif Sultan, Sajad Gul, Majid Hyderi, Manan Dar and several others have been booked under different charges and multiple cases. Once the court grants them bail, the authorities invoke the PSA, prolonging the detention period. Many PSA detentions have been quashed but involve prolonged litigations.

Both in the case of Fahad Shah and Sajad Gul, accused in different cases, the detention under PSA meant a continuum of the ordeal till they were finally granted bail in all cases. The High Court, while quashing his detention order under PSA on April 13, 2023, held that “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’.”

But Shah was slapped with a fresh case under the anti-terror law, Unlawful Activities Prevention Act (UAPA), for a “seditious” and “highly provocative” article published by Kashmir Walla in 2011. He was booked in three other cases subsequently.

Shah was finally released after the Court of Jammu and Kashmir observed that the State Investigation Agency (SIA) lacked evidence against him to prove charges under the Unlawful Activities (Prevention) Act (UAPA). He was accused of “glorifying terrorism” and “spreading fake news” through his magazine. Major charges against him were dropped and he was released on bail. But his trial is going on in designated court under UAPA in Jammu.

Significantly, the High Court, in its judgment, stated, “There is no material to suggest that the article contains content that provokes people to take up arms and resort to violence.”

Columnist and Research Scholar, Aala Fazili, the author of the 2011 article was also arrested in April 2022 under UAPA and was recently released on bail after the court observed that “‘Bail is the rule and jail is the exception’ is a settled law”.

Sajad Gul, a trainee reporter for the now-banned Kashmir Walla, was released after spending 910 days in Indian jails following his arrest on January 5, 2022.

The groundwork for Gul’s arrest was laid almost a year earlier with a First Information Report (FIR) filed against him on February 2, 2021, accusing him of trying to “disrupt peace and tranquility.” At the time of his arrest, another FIR was filed accusing him of “promoting disharmony and public mischief.”

The same month, a local court in Bandipora granted bail to Gul. But prior to that, the government invoked the Public Safety Act (PSA) against him. Though, the courts set aside his detention on November 9, 2023, but a fresh case was slapped against him, prolonging his detention.

In November 2023, while quashing the dentition order of Gul, the High Court of Jammu and Kashmir held that detaining critics of the government is “an abuse of the preventive law”.

After the quashment of his detention order, Gul was moved back to Kashmir from a prison in Bareilly, Uttar Pradesh, and kept for 198 days in the Baramulla district jail on charges he faced in an FIR filed against him in December 2023. On July 8, 2024, he was finally released after a sessions court in Bandipora granted bail in that case.

Like Fahad Shah, he is facing three other criminal cases.

After spending years in prison, many journalists continue to be caught in the vicious cycle of detentions, fresh cases and litigation.

Aasif Sultan, arrested in August 2018 is incarcerated for more than six years, and was detained under Public Safety Act (PSA) and other criminal cases. He was first arrested under UAPA and later detained under PSA.

After spending over five years in detention, he was released in February 2024 following a court order that quashed his PSA detention as “illegal and unsustainable.”

However, just a day after his release, Aasif Sultan was re-arrested by Jammu and Kashmir Police in another case. Following this, he was finally granted bail in May 2024 by a special court, which noted that he had been in custody for over six years without reasonable justification.

UAPA as a Tool to Deny Bail

While most journalists have been released after their prolonged incarceration, Irfan Mehraj, arrested by National Investigating Agency (NIA) and mentioned as a co-accused in a chargesheet against human rights defender, Khurram Pervez, has now completed 700 days at the high-security Rohini Prison in New Delhi.

Mehraj has been imprisoned for over two years without a trial and was initially detained for six months without a chargesheet being filed. There has been no decision on his bail application despite the lengthy detention period.

His case exemplifies the systemic weaponisation of UAPA against journalists and human rights defenders through deliberately vague charges and procedural flaws, accusations based on unnamed multiple witnesses (in his case 177), making the trials prolong and stonewalling bail applications.

UAPA is characterised by a structural flaw where the burden of proof is reversed. Under UAPA, the accused must prove his or her innocence rather than the prosecution proving his or her guilt, inverting the standard legal principle of “innocent until proven guilty.”

Though the courts have provided relief by granting bail in several cases involving journalists from Jammu and Kashmir, Irfan Mehraj still awaits even that glimmer of hope.

Even for those now out on bail, the process has been long drawn out. Many of them were caught in a revolving door process of multiple charges and cases including under UAPA, making it imperative for them to challenge each charge and case separately in court, to finally find themselves caught in the web of PSA.

Weaponising Public Safety Act

While getting bail in a UAPA case becomes difficult, the most widespread is the use of the PSA which Amnesty International has termed a “lawless law.”

Despite several rulings by the Apex Court and Jammu and Kashmir High Court that the Public Safety Act (PSA) cannot be used to bypass the due process of law, authorities in Jammu and Kashmir continue to use the Public Safety Act (PSA), 1978 as a tool against journalists for their reportage.

Clifton De Rosario, General Secretary All India Lawyers Association for Justice (AILAJ) told the Kashmir Times that the weaponisation of PSA against any political dissent is now extended to journalists in Kashmir, exposing the hollow claims of normalcy in the valley.

“Over the past three terms of the Modi government, it is more than apparent that this right-wing regime cannot tolerate any real journalism. The repeated use of PSA against journalists confirms that bureaucrats, committed to such ideology are pulling the daily strings of administration without any care for democratic ethos”.

Jammu based Tarun Behl, 46, a journalist and owner of the newspapers Sree Times and Aasman is a more recent victim of this ongoing crackdown. Behl was booked under Public Safety Act (PSA) on September 5, 2024.

Before getting booked under Public Safety Act, he was arrested and booked by police under the Official Secrets Act, 1923, on July 8, 2024, for allegedly circulating a list of 57 protected persons, including journalists, politicians, and retired police officers, whose security cover was recently withdrawn by the J&K administration.

After being granted interim bail in the case on July 22, 2024. Behl was subsequently slapped with the Public Safety Act (PSA), which Amnesty International has  described as a draconian law.

The arrest of Behl under PSA demonstrated that there has been no real change on the ground.

Behl, whose PSA was quashed by the High Court of Jammu and Kashmir on January 2, 2025, was accused of “intentionally circulating secret and confidential information, related to the security issues of various dignitaries, including secret official documents in the WhatsApp group for vested interests”.

While quashing the dentition order of Behl, the High Court observed that “the petitioner’s ultimate arrest and detention on September 6, 2024, is a pointer to the fact that the petitioner was somehow being eyed upon to be a witch-hunt by the authorities.” 

The J&K High Court found several critical flaws in Tarun Behl’s preventive detention. The court determined that the detention order was “illegal” and highlighted the misuse of PSA and a collaboration between the Senior Superintendent of Police (SSP) and the District Magistrate of Jammu.

When the District Magistrate initially refused to issue a detention order based on the original dossier, the SSP created a “revised dossier” with additional allegations, including a third FIR and information about Behl’s bank accounts. The court viewed this as “a sham show” and deliberately crafted to “fetch preventive detention” to which the District Magistrate then “yielded his discretion and judgment as if given on asking.”

The court criticized how authorities presented Behl’s multiple bank accounts as suspicious, noting they treated “having such a number of bank accounts” as if it “was an illegal act in itself.” This reasoning was deemed unjustified.

The court ultimately ruled that both the SSP and the DM had “blatantly resorted to a dubious exercise of authority and jurisdiction at their respective ends to infringe upon the personal liberty of the petitioner by subjecting him to preventive detention.”

Seven-fold Increase in PSAs

Though the use of arbitrary detentions under PSA has been going on since several decades, Jammu and Kashmir has witnessed a seven-fold increase in preventive custody since 2019.

According to an Amnesty International press release dated September 18, 2024, a total of 272 habeas corpus petitions were filed in the Jammu and Kashmir High Court between 2014 and 2019 – 41 before the Jammu bench and 231 in Srinagar.

However, following the revocation of J&K’s autonomy in August 2019, the number of petitions surged dramatically, reaching 2,080 between 2019 and 2024. Of these, 289 petitions were filed in Jammu and 1,791 in Srinagar.

The report further reveals that  “Amnesty International have verified cases of at least five individuals, including journalists,  political leaders and activists, who have been prevented from travelling abroad or travelling into India, despite having the requisite travel documents, in violation of their right to freedom of movement. The Indian authorities have imposed the bans without any written explanation, court order or proper notification within the legal time frame which indicate a form of retaliation against their legitimate human rights work around Jammu and Kashmir”.

On January 30, 2024, Newslaundry reported that an RTI response in 2015 had revealed that 16,329 individuals had been detained under the preventive detention law since 1988, with nearly 95% of them belonging to Kashmir.

In a separate RTI response filed by the NGO J&K RTI Movement in 2023, it was disclosed that between August 2019 and July 2023, 1,570 petitions were filed challenging detention orders under the Public Safety Act (PSA). Of these, the J&K High Court quashed 900.

Lara Jasani, a Senior Lawyer from Bombay and Member of PUCL says that Public Safety Act has been arbitrarily used in J&K to detain dissenters and those exposing or criticising the government decisions.

“What we have seen because of this is a silencing of the media and criminalisation of journalists. It’s unfortunate if the law is still being used, even despite the spate of court decisions which have not just held such detentions illegal but even at times, imposed costs,” she told the Kashmir Times.

Terming it a disregard for “constitutional principles” and the judicial decisions which sought to remind the authorities of them. She says that the current government needs to be reminded of its own election promise to repeal this draconian law, which is even used against political opponents.

PSA is an unjust law, which allows detention without trial, punishment without crime. “It is a tool to make arbitrary detentions possible and needs to go. It is high time the government initiates action to do so if it really wants to bring peace to the valley,” she adds.

After Behl’s release, the Jammu and Kashmir High Court quashed the detention order of journalist Majid Hyderi on 20 February 2025.

Hyderi was first arrested on September 14, 2023, by the local police in Srinagar following a complaint filed against him for ‘criminal conspiracy, intimidation, and defamation’.

Although the journalist granted bail in a defamation case, he was rearrested a few hours later under the PSA and accused of threatening India’s ‘sovereignty, security and integrity’ through media and social media posts.

Justice Vinod Chatterji Koul of J&K High Court quashed the detention order, stating that the grounds were “vague & ambiguous” as they failed to mention specific dates of the alleged activities attributed to Hyderi. The court ruled that preventive detention without clear grounds cannot be justified.

The judgment emphasized that preventive detention requires a “live and proximate link” between past conduct and present need for detention. The court noted that the detaining authority referenced social media posts and news items from 2018, which failed to demonstrate such a link.

The court expressed surprise that the detaining authority used an FIR to justify detention, noting that the allegations therein would not affect “sovereignty, security and integrity” of India, and did not warrant invoking the J&K Public Safety Act provisions.

While quashing his detention under PSA, the court relied on the precedent of Sajad Ahmad Dar v. Union Territory of J&K, which established that criticism of government policies cannot justify preventive detention.

An unspecified number of journalists have been briefly detained and interrogated since 2019. The detention periods last for a few weeks or a few hours. Many cases are unreported, but several journalists allege that they are repeatedly called to police stations for questioning.

A Continuing Ordeal After Bail

Even for those journalists now out on bail, the ordeal, does not end. The years of imprisonment take their toll.

Out of prison for more than a year, Fahad Shah continues to grapple with the lasting impact of his detention.

“Any type of detention or prison or cases against journalists has an impact,” Shah told the Kashmir Times.

As he deals with the psychological import of that, Shah also struggles to restart his career after his release, with the banned online magazine causing a major setback. The Kashmir Walla he built from a scratch over a decade ago, no longer exists.

Work has shrunk and he now occasionally writes for different publications.

For Sajad Gul, the endless nightmare is even more profound. Unlike Fahad Shah, who was well established in his career, Gul who doubled up as a trainee reporter and a journalism student, it was just the start of his career when his wings were clipped with his arrest in January 2022.

Fear is Palpable

Released in the summer of 2024, he has yet to restart his professional career. He was in the final semester of Masters in Communications when he was arrested. The academic dreams were cut short too. He is struggling to complete his degree.

“The stories I wanted to cover, I can’t do because I fear that they will harass me again and jail is a horrifying experience that I don’t wish to undergo again,” he says, talking about the fears he is unable to shake off.

“When I recall where I could have been by now if I hadn’t been imprisoned, I feel that I have been let down by the government,” he says.

“My career ambitions are at a standstill. I had dreamed of pursuing journalism at a foreign university, but now I can’t do anything,” he says, talking about his almost abandoned dreams.

“I have restrictions on my passport. My travel opportunities have been limited because I am a journalist. Even visiting Delhi sometimes causes trouble if I go without asking the police,” Gul told the Kashmir Times. I also don’t want to come into the limelight now…….,” he adds.

Sajad Gul’s two and a half years in prison have shaken him. During this time, he was shifted from one jail to another within Jammu and Kashmir and finally to Bareilly in Uttar Pradesh – an experience that became unbearable.

For almost two years in Bareilly, Gul spent in a 10-foot by 10-foot cell amidst the heatwave and the bitter cold. “From the cold damp quarters inside the cell, it was so chilling that one would prefer death over life in such situations,” he says, recalling his ordeal.

“I used to tremble in the chilling cold of Uttar Pradesh. Once I was even tempted to ask my jailor to give me warm clothes, but the jailor wasn’t bothered. It becomes tougher in jail when you are sent away and need money and clothes, but your family can’t even afford to visit you. Then the jail becomes even harder,” Gul told the Kashmir Times.

A senior journalist, preferring anonymity, says that given the number of journalists incarcerated, summoned and raided, their electronic devices confiscated, cases slapped against them and travel bans etc, “the psychological impact is massive”.

He said: “Even routine storytelling has been criminalised and censorship normalised. Fear is not imaginary, it is real.”

“Invoking draconian laws to silence journalists means that there is also the element of self-censorship involved. Simply put, journalism is dead and buried. Any story can be your last,” he says, pointing out the dismal scenario even for journalists who haven’t suffered incarceration.

“When you write a story as a journalist but are compelled to edit or proofread it as a bureaucrat or a police officer – that is a telling comment…. Fear of reprisal is palpable,” he says.

(Mubashir Naik is a legal researcher and A Kashmir Times staffer provided inputs to this report.)

(This report has been updated for accuracy and corrected quotes of journalist Fahad Shah)

Courtesy: Kashmir Times