Since 2019, Ali Mohammad Lone, a 61-year-old lawyer, has been detained four times under Jammu and Kashmir’s draconian preventive detention law.
Lone is a former spokesperson of the banned outfit, Jamaat-e-Islami Jammu and Kashmir. In all, he has spent 1,080 days in custody.
On April 3, the High Court of Jammu and Kashmir and Ladakh not only termed Lone’s preventive detention “illegal” but also ordered the government to pay him a compensation of Rs 5 lakh.
While it is common for the court to strike down preventive detention cases, it is arguably the first time it has ordered compensation to an individual detained repeatedly under the Public Safety Act.
“This court cannot resist but to hold that the preventive detention of the petitioner is mala fide and illegal,” Justice Rahul Bharti said in his judgement in a petition filed by Lone’s son.
Every year, hundreds of individuals in Jammu and Kashmir are detained under the Public Safety Act, which allows the authorities to jail a person considered a threat to “security of the state” without trial for up to two years.
Enacted in 1978 to crack down on timber smugglers in the erstwhile state, the law has become synonymous with the government’s efforts to crush dissent in the restive Kashmir valley. It has been used by authorities to jail separatists, activists, stone-pelters and militant associates.
The Union government used it extensively in the run-up to the revocation of Jammu and Kashmir’s special status in August 2019, detaining 444 people in the erstwhile state, according to data shared with Parliament in February 2020. That included three former chief ministers of the erstwhile state and a sitting Member of Parliament. In 2022, 650 people were detained under the law.
Over the last few months, the high court’s judgments have drawn attention to the sweeping arbitrariness with which the authorities invoke the Public Safety Act.
Scroll examined three such judgements which reveal a pattern of district authorities failing to scrutinise the claims of the police while passing detention orders. Strikingly, even after the courts quashed the detention orders, many were yet to be released.
In May last year, Jaffar Ahmad Parray, a 26-year-old youth from South Kashmir’s Shopian district, was booked under the preventive detention law and detained at the Baramulla district jail.
Under the law, a divisional commissioner or a district magistrate can issue a detention order against a person on the basis of a dossier prepared by a law enforcement agency. However, the official must evaluate the police’s version before detaining someone.
According to the grounds of detention made out by the Shopian district magistrate, Parray was alleged to be a “hardcore overground worker of Lashkar-e-Taiba and Hizbul Mujahideen terrorist outfits” who had taken part “in anti-national and anti-social acts prejudicial to the security” of Jammu and Kashmir and the country.
Overground workers is a term used to refer to individuals who provide logistical support to militants, without taking up weapons.
However, there was no police record or case pending against Parray before or at the time of his detention.
The charge that Parray was an overground worker of militant groups was based on his “interrogation” by the Shopian police.
The single bench of Justice Rahul Bharti raised an important question: If Parray was not involved in “a registered criminal act of omission or commission”, on what basis had he been interrogated by the police in the first place?
“. the dossier by the SSP Shopian and the grounds of detention framed by the district magistrate, Shopian, ought to have put it on record as under which authority of law, the petitioner [Parray] came to be first picked up, by whom and then by whom subjected to so called interrogation so as to make alleged revelations,” the court observed.
On March 22, the High Court of Jammu and Kashmir and Ladakh quashed Parray’s preventive detention order.
Picking up an innocent citizen and extracting a confession that implicates him and justifies his preventive detention “would be to concede to a scenario that India is a police state which otherwise it is not by any stretch of imagination or claim”, the high court said.
