'Deprived of Rights, Non-Application of Mind': J&K HC Tears Into PSA Proceedings Against Fahad Shah

Severely criticising authorities, the HC said they had shown no compelling reasons for detaining the journalist under PSA while he was already in custody.

Srinagar: The Jammu and Kashmir high court has ruled that authorities deprived Kashmiri journalist and editor Fahad Shah of his “constitutional and legal rights” while terming the grounds of his detention under the controversial Public Safety Act (PSA) as “mere surmise” and “vague and bald assertions.”

Quashing the proceedings under the PSA, which has been termed as ‘a lawless law’ by Amnesty International, a single bench of J&K HC led by Justice Wasim Sadiq Nargal ruled that the authorities “did not carefully evaluate and apply their thoughts” while issuing the PSA order.

The court ruled that Article 22 was “specifically inserted” in the constitution to ensure that the state authorities do not use the “exceptional and even draconian” powers of preventive detention.

“The case at hand is a clear example of non-application of mind,” the court said in its order which was passed on April 13.

The court observed that a District Magistrate (DM) is empowered by law to order the preventive detention of suspects “to prevent subversion of public order”… “but not in aid of maintenance of law and order under ordinary circumstances.” The court observed that in the case of Shah, who has been languishing in prison since 2022, the District Magistrate had “widened his own field of action”.

Referring to a J&K HC judgement, the court said that a District Magistrate has to furnish “compelling circumstances” to justify the detention of suspects under the Public Safety Act.

Also read: In PSA Order, Kashmiri Journalist Fahad Shah Accused of ‘Promoting Separatism’

“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,” Justice Nargal ruled in a 27-page order.

Shah has been booked by agencies in five anti-terror cases, including the Public Safety Act which has now been quashed and, if convicted, he faces different sentences which can extend to life imprisonment. The courts have granted him bail in three out of four criminal cases.

Not provided with detention dossier

While quashing his PSA detention, the court pointed out that Shah was not provided with the dossier of his detention which, as per law, would have allowed him to mount an “effective representation before the relevant authorities”. “The non-supplying of the dossier is one of the main lacunae in the detention of (Shah),” the court ruled.

In its PSA dossier, the J&K Police claimed that Shah was “filled with hatred against Union of India”, “promoted separatism” and his “activities seem to be prejudicial to the sovereignty, security, integrity, peace and tranquility of the UT of J&K and also the Union of India”

Terming him as a threat to public order, the police dossier also accused Shah of arranging “logistical support for anti-national activities” and “inciting violence thereby leading to disturbance in public order.”

However, the court observed that while the dossier accused Shah of indulging in “inciting violence, thereby leading to disturbance in public order”, another ground of detention alleged that the stories published by Kashmir Walla, an online news portal founded by Shah, was “propagating stories which are against the interest and security of the nation”.

Public order and ‘security of nation’

Deliberating on the question of whether ‘public order’ and ‘security of state’ are “distinct and separate or they can be used interchangeably”, the court relied on several judgements, including a Supreme Court order which ruled that the two are distinct concepts, “though not always separate.”

The court said that a breach of peace may lead to law and order problems but such breach does not always cause public order disturbance and every public disorder “may not prejudicially affect the ‘security of the State’.”

Also read: Journalist Fahad Shah’s Arrest Is ‘Harassment in the Name of National Security’: Editors Guild

“Maintenance of 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,” the court ordered.

“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 court ruled, terming the apprehensions of public disorder as “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.”

Quoting a SC constitution bench judgement, the single bench ruled that “every disorder does not meet the threshold of a disturbance to public order, unless it affects the community at large.” “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,” the court observed while terming Shah’s detention as “illegal”.

While ruling that the nature of the allegations against Shah are “grave”, the court however said that his personal liberty “cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding.”

Representative image. Restrictions in Srinagar, Jammu and Kashmir on August 5, 2020. Photo: PTI/File

‘Sedition’ charge over article

Last month, the State Investigation Agency filed a chargesheet in a sedition case against Shah and Aala Fazili, a Kashmir University scholar, following the publication of an article authored by Fazili in Kashmir Walla titled “The shackles of slavery will break”.

The case was filed by the anti-militancy agency’s CIJ police station based in Jammu on April 4, 2022 (FIR number 01/2022) nearly 11 years after the magazine hosted the “seditious” article in 2011. Both Shah and Aala have been arrested in the case.

In this case, Shah has been charged under sections 35 (accepting foreign contribution in contravention of provisions of FCRA) and 39 (violation of FCRA) of the Foreign Contribution (Regulation) Act 2010. In its chargesheet, the anti-terror agency had claimed that digital media’s subscription model could be used to ‘foment trouble’.

The chargesheet also accused Reporters Sans Frontiers (RSF), a Paris-based press freedom watchdog of “subverting the democratic freedoms all over the world”. In its 2022 report, the RSF ranked India at 150 out of 180 countries in terms of media freedom.

‘Incorrect reporting’

Shah was first arrested on February 4 last year for “glorifying terrorist activities” on social media and causing “disaffection against the country” by alleged “incorrect reporting” of a gun battle in south Kashmir’s Pulwama district in which three militants, including a top commander, were gunned down.

Inayat Ahmad Mir, the son of the house owner where the firefight took place, was also killed. While J&K Police said that he had joined militants recently, his family had rejected the claims. Hours later, a video of Inayat’s sister surfaced on social media in which she purported to reject the claims of her brother’s innocence.

Following her disclosure, J&K Police had booked Inayat’s family in FIR No 18/2022 under Section 307 (attempted murder) of Indian Penal Code, Arms Act and sections 16 (punishment for terrorist act), 18 (punishment for conspiracy), 20 (punishment for being a member of terrorist organisation) and 38 (offence relating to membership of a terrorist organisation) of the UAPA.

Also read: UN Rights Experts Ask India to Explain Intimidation of 4 J&K Scribes, Closure of ‘Kashmir Times’

Shah was among four journalists who were called to testify as witnesses in the case, and he became the only journalist who was named as an accused.

According to the United Nations, Shah has faced six cases of intimidation between June 2017 and January 2021.  On January 30, 2021, Shah was booked under Sections 153 (provocation with intent to cause riot) and 505 (statements conducive to public mischief) of the Indian Penal Code for a report which alleged that the Army was “pressuring” the management of a private school in Shopian, a hotbed of militant activities, to organise the Republic Day celebrations.

The Army had denied the charge and complained to the police which filed the FIR. A court has granted Shah bail in this case.

The third criminal case pertains to Kashmir Walla’s coverage of an encounter in Srinagar’s Nawa Kadal locality on May 19, 2020, during which over dozen houses were razed to the ground. Locals had alleged that the security forces looted cash and jewellery before setting the houses on fire, a charge denied by officials. The allegations and the official denial were reported by Kashmir Walla as well as local and national media.