Srinagar: A government critic can’t be put under preventive detention in the absence of a “live and proximate link” to a law and order problem, the Jammu and Kashmir high court ruled, while quashing the preventive detention of journalist Majid Hyderi under the Public Safety Act (PSA).
“If we treat detenu, like peace loving citizens, in such a harsh way, by bashing and thrashing them, and placing them under preventive detention, then we will lose ‘peace’ and ‘peace loving citizens’,” high court judge Vinod Chatterji Koul observed in his judgement.
The 23-page judgement, which was passed on Wednesday (February 19), noted that the “vague and ambiguous” grounds cited in the PSA dossier of Hyderi had “invaded (his) constitutional rights” which “violates the fundamental right to life and personal liberty of the detenu under Article 21 of the constitution”.
“The vague and generalised grounds in the order of detention, smacks of arbitrariness on the part of the detaining authority rendering the subjective satisfaction arrived at as violative of Article 14 of the constitution,” the court observed.
The court said that the power of preventive detention should be used “bona fidely for the purpose of prevention of possible criminal offences by detenu based on past behaviour with a pattern of repeated offences.”
Hyderi, who worked with a local digital news platform and also frequently appeared in TV debates, was detained under an order, which was passed on September 16, 2023 by Srinagar district magistrate after he was granted bail by a Srinagar court in a defamation case.
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The court found it “startling” that the pending defamation suit filed against Hyderi by a local journalist in Shergari police station was used to justify his detention under the PSA and label him as a threat to the “sovereignty, security and integrity” of India.
“When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder and threat to security of the State,” the court observed.
It added: “A mere disturbance of law and order leading to disorder is, thus, not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the (Public Safety) Act.”
Hyderi’s counsel told the court that he had reported a story in 2023 about the Srinagar-based journalist, reportedly a proclaimed offender with various pending criminal cases who presently works with a Hindu rightwing-oriented national newspaper.
The counsel said that Hyderi had informed Prime Minister Narendra Modi, Union home minister Amit Shah, J&K lieutenant governor Manoj Sinha about the “illegalities committed by the said person so that appropriate legal action was taken and he was unable to exercise influence” on the government.
The journalist had sought a court injunction to prevent Hyderi from writing more reports about him. However, the court dismissed his application following which he filed another application under Section 156 (3) CrPC which was forwarded to police for action.
Under this section, a magistrate empowered under Section 190 can order police to investigate a cognisable case.
The counsel informed the court that the police lodged a “frivolous” FIR No 88/2023 on September 14, 2023 under Sections 500, 177, 386, 120B of the Indian Penal Code (IPC) “despite non-disclosure of any cognizable offence” following which Hyderi was arrested.
On September 16, 2023 a court in Srinagar granted bail to Hyderi. “Despite grant of bail detenu was not released and came to be placed under preventive detention,” Hyderi’s counsel told the court.
Coming down heavily on the detaining authority, the court observed that a “mere reference to the pending criminal cases” can’t be used as a ground of detention.
“It is not open to detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future,” the court said.
The court observed that the orders of preventive detention must be backed by a ‘live and proximate link’ between “past conduct and present imperative need” to detain a person.
“Detention order may refer to previous criminal antecedents only if they have a direct nexus or link with the immediate need to detain an individual. If the previous criminal activities of a person could indicate his tendency or inclination to prejudicial activities, then it may have a bearing on the subjective satisfaction of detaining authority,” the court observed.
Referring to the social media posts of Hyderi from 2018, which were used as grounds for his detention, the court observed that they “lack in to demonstrate a live and proximate link”. Hyderi’s PSA dossier had alleged that he was advocating separatism and secessionist ideology through electronic and social media.
Citing a judgement of the J&K high court division bench, the court ruled that being a government critic can’t be used as a ground to put a person under preventive detention if their views don’t lead to “any problem much less public order problem to the government”.
“About the social media postings/reportings, a division bench of this court vide judgement dated 09.11.2024, in LPA No.270/2022 titled as Sajad Ahmad Dar v. Union Territory of J&K and others, has held that negative critic towards the policies of Government of Union Territory of Jammu and Kashmir cannot be said to be a ground to be relied upon for placing a person under preventive detention, that too without any specific instance as to how such social media comments had caused any problem much less public order problem to the government,” the court observed.
The court also noted that Hyderi’s mother hosted ‘Wadi Ki Awaz’ radio programme using a different name to prevent backlash from militants. The programme used to air on Radio Kashmir when the non-local employees of the public broadcaster had fled the valley following the eruption of armed insurgency in the early 1990s.
“She exhibited great courage and patriotic zeal when she volunteered to host the counter-propaganda programme,” the court observed, noting that Hyderi would “have been serving the nation” if he was not languishing in jail.
“Instead of appreciating the detenu, he has been placed under preventive detention. Instead of rewarding (the) mother of detenu, she has been forced to see her son detained in preventive detention for none of his faults,” the court said.
The court also observed that the social media posts of Hyderi suggested that he had praised Modi, Shah, Sinha and police officers and “exposed” the Hurriyat’s “so-called” chairman Syed Ali Geelani while ordering Hyderi’s release.
