'Tendency To Detain Critics Of Govt Abuse Of Preventive Detention Law' : High Court Quashes Detention Of Kashmir Journalist

While quashing the detention of Kashmir-based journalist Sajad Ahmad Dar, the High Court of Jammu and Kashmir and Ladakh criticised the tendency of authorities to detain persons for simply being the critics of the government, terming it as an abuse of the preventive detention law.

Dar, who writes under the name Sajad Gul, has been under detention under the Jammu and Kashmir Public Safety Act since January 16, 2022 on the basis of allegations of the detaining authorities that his tweets and statements promoted enmity and were prejudicial to maintenance of public order and security of the State.

Finding the allegations to be vague and general, without any specific instance, the High Court ordered the immediate release of Dar. 

"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.

The division bench comprising Chief Justice N. Kotiswar Singh and Justice MA Chowdhary noted that the grounds of detention nowhere mention that the detenu had uploaded 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 ofthe 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 said.

Being a critic of government no ground to detain a person; true news reports can't be held to be provoking people against the government

The bench categorically stated that a person can't be detained merely for the reason that he is a critic of the government. The detaining authority had observed that the detenu had been a negative critic towards the policies of the Government of the Union Territory of Jammu & Kashmir and that his tweets used to provoke the people against the Government. This, the bench said, cannot be a ground to detain a person.

"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.

Procedural violations infracted Article 22(5)

The bench noted that there were several procedural violations as well. The detenu was not 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. Also, 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"

The police dossier had claimed that Dar being “well educated”, could use the social media to provoke people against the government and that being a journalist, he “promoted enmity” than reporting about the welfare of Jammu and Kashmir. In one FIR, it was alleged that he had created obstacles in the encroachment drive of the Revenue Department in his native village on 14th of December, 2021. Another FIR alleged that he was spreading "false and fake narrative" about an encounter operation of security forces and the third FIR alleged that he uploaded a video on social media highlighting the "anti-national slogans" raised by the people on 13th of January, 2022 after an encounter operation by security forces in Srinagar.

The High Court observed that the grounds of detention are vague and that the detaining authority did not apply his mind. It also noted that detaining authority had omitted to mention that Dar was granted bail in one of the cases.

"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."

"The whole of the record/ documents, on which reliance was placed to detain the detenu, had not been supplied to him and that there are vague grounds of detention, with no right of making an effective and meaningful representation is not sustainable, for contravention of the statutory provision of the J&K Public Safety Act as well as constitutional guarantees provided under Article 22 (5) of the Constitution of India."

Earlier a single bench of the High Court, in December 2022, had refused to interfere with the detention order, following which he appealed to the division bench.

Case : Sajad Ahmad Dar v. Union Territory of Jammu & Kashmir,

Citation: 2023 LiveLaw (JKL) 289

Click here to read the judgment