Jammu & Kashmir HC: Being a critic of government no ground to detain a person, detaining authorities apply no mind

Detention order against Sajad Dar, a Kashmir-based journalist, quashed based on vague grounds of detention, violation of Article 22 (5) and lack of subjective satisfaction of curtailing liberty under Article 21; Dar has spent 22 months under detention
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On November 19, the Jammu & Kashmir and Ladakh High Court quashed the detention of Sajad Ahmad Dar, a Kashmir-based journalist, while criticising the tendency of the authorities to detain persons for simply being the critics of the government. The High Court termed such detentions to be an abuse of the preventive detention law.

Allegations made against Dar:

It is essential to note that Dar has been under detention since January 16, 2022 under the Jammu and Kashmir Public Safety Act (PSA). While detaining Dar, the detaining authorities had accused him of tweeting and making such controversial statements that promoted enmity and were prejudicial to maintenance of public order and security of the State. Dar used to write under the name Sajad Gul.

The detaining authorities also submitted that even as Dar had been previously detained in a number of criminal cases, the same has not deterred him from committing “anti-national activities”. As per the judgment, it was also averred by the authorities that the aforesaid facts and circumstances deemed it necessary for them to invoke the provisions of the PSA and detain Dar from acting in any manner which is prejudicial to the maintenance of public order and the security of the State.

A total of three FIRs had been registered against Dar. In the first FIR, Dar had been accused of creating obstacles in the encroachment drive of the Revenue Department in his native village in December 2021. Whereas, in the second FIR, he was accused to have tweeted against the Union of India in October 2021 from his Twitter account through which he alleged spread false and fake narrative of a terrorist operation which was carried out in Gund Jahangeer and in which one local terrorist, namely, Imtiyaz Ahmad Dar, was eliminated and, thus, tried to agitate people against the security forces. In the third FIR, Dar was alleged to have uploaded a video on social media highlighting the anti-national slogans raised by the people in January 2022 in the house of a most wanted terrorist, namely, Saleem Parray, eliminated in an encounter at Shalimar, Srinagar. (Para 8)

Observations by the High Court:

The division bench comprising Chief Justice N. Kotiswar Singh and Justice MA Chowdhary made the following observations after hearing the submissions made by both the parties:

Supply of relevant material to the detenu under Article 22(5): On the outset, the court observed that the Dar had not been provided with the relevant documents required under law to make an adequate representation against his detention.

In Para 12 of the judgment, the HC noted that “In the present case, the detenu has not been provided all the relevant material like dossier, FIRs, statements of witnesses and other allied documents, including the alleged posts on his social media accounts, which were relevant for making a proper representation against his detention, not only to the detaining authority but also to the Government, besides seeking audience before the Advisory Board constituted under the J&K Public Safety Act.”

The court also highlighted that the whole of the record of the three FIRs registered against the detenu and relied upon by the detaining authority to draw his satisfaction with regard to ordering preventive detention of the detenu has not been furnished/ supplied to the detenu. This resulted in the violation of the constitutional rights under Article 22(5) of the Constitution.

“In absence of providing of the whole of the documentary record, the detenu cannot be said to be able to make an effective and meaningful representation against his detention which was his statutory as well as constitutional right.” (Para 17)

It also noted that detaining authority had omitted to mention that Dar was granted bail in one of the cases.

Grounds of detention: In its judgement, the court noted that there was no specific allegations made against Dar to show that his activities could be attributed to be prejudicial to the security of the State. Observing this, the Court found the allegations to be vague and general and without any specific instance to show that Dar had been working against national interests.

“Such a tendency on the part of the detaining authority to detain the critics of the policies or commissions/ omissions of the Government machinery, as in the case of the present detenu – a professional media person, in our considered opinion, is an abuse of the preventive law,” the Court observed in the judgment in Para 14.

The Court further noted that that the grounds of detention had nowhere mentioned that Dar had indulged in uploading any false story or that his reporting was not based on true facts. It further noted that the detaining authority, itself, has admitted that the detenu, having done Masters in Journalism, was working as a Journalist and it was his professional/ occupational duty to report the happenings in his area, even including the operations of the security forces. There is no specific allegation against the detenu as to how his activities could be attributed to be prejudicial to the security of the State, the bench had said.

“The grounds of detention nowhere suggest/ reveal that the detenu had, at any point of time, filed/ uploaded any false story/ reporting based not on true facts. It is nowhere stated as to how the detenu had disrupted the public order creating any alleged enmity, inasmuch as, there is no specific instance in any of the allegations levelled against him to show that he had been working against the national interests, so as to be prejudicial to the security of the State,” the Court further observed in the judgment in Para 14.

Being a critic of government no ground to detain a person: Following the aforementioned observation, the bench of the High Court declared unequivocally that an individual cannot be imprisoned solely for the reason that he criticizes the government. The detaining authorities said that the detenu had been critical of the Union Territory of Jammu & Kashmir government’s policies and that his tweets had incited protests against the government. The bench declared that this could not be a reason to hold someone.

“This cannot be said to be a ground to be relied upon that a true and factual media report can provoke people against the working of the Government, that too without any specific instance as to how his tweets had caused any problem, much less public order problem with the Government. In the grounds of detention, it has also been referred that the uploading of the news items by the detenu, as a Journalist, had created enmity and acrimony against Government machinery, however, there is no specific instance as to which of the posts/ write ups are there as being so and on what date,” the bench observed in Para 15 of the judgment.

Judgement of the High Court:

The High Court observed that the grounds of detention are vague and not sustainable and that the detaining authority did not apply its mind to draw subjective satisfaction. “The detention order based on such vague grounds is not sustainable, for the reason that the detaining authority, before passing the order, has not applied its mind to draw subjective satisfaction to order prevention detention of the detenu by curtailing his liberty which is a valuable and cherishable right guaranteed under Article 21 of the Constitution of India.”

With this, the division bench of the High Court set aside the earlier order passed by a single bench of the High Court, in December 2022, which had refused to interfere with the detention order passed by the District Magistrate. The High Court then quashed the said detention order and directed the release of the detenu from preventive custody.

The complete order can be read here:



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