Srinagar: Rapping the administration for “trampling” the constitutional rights of a Kishtwar-based social activist, the Jammu & Kashmir and Ladakh high court on Wednesday (September 10) struck down his  over 10-month-long “illegal” detention under the Public Safety Act (PSA) and ordered his release.

The court order has once again brought back spotlight on the misuse of extraordinary administrative powers under which a litany of alleged overground workers and sympathisers of militants, separatists, lawyers, activists, journalists and political leaders have been detained without trial in Jammu and Kashmir by dubbing them as “anti-national” elements and a “threat” to the state.

Activists and the opposition political parties have described these measures as “arbitrary” and “illegal”, terming them as part of a broader crackdown by the Bhartiya Janta Party-led Union government on free speech after Jammu and Kashmir was bifurcated and downgraded into two Union territories on 5 August 2019.

The order by judge M.A. Chowdhary of the Jammu wing of the high court on Wednesday came down heavily on the administration for using “stale” police cases and “Xerox copies” of PSA dossiers “without application of mind” to detain Mohd Jaffer Sheikh, a resident of Nattas in Dool tehsil of Kishtwar under the controversial legislation (No 6th /DM/K/PSA of 2024) on November 7, 2024.

Sheikh's detention

Sheikh was detained along with four other activists in the aftermath of protests that broke out last year against a private company involved in the construction of the 1000-MW Pakal Dul hydropower project in Dacchan tehsil of Kishtwar district in Chenab valley.

Ghulam Hussain Dar, a roller operator and father of five daughters, was fatally struck by a tanker on November 8, 2024 while on duty at the project site. The incident had prompted massive protests across Kishtwar district against the private company, which was accused of compromising the safety of its workers.

At that time, the district administration had faced allegations that instead of investigating the lapses at the project site, it had cracked down on the locals who were demanding accountability by booking them under false charges.

According to reports, the then deputy commissioner Rajesh Kumar Shavan had warned “22 persons” that they were “on the radar” for making “attempts to stop” work on the power projects in Kishtwar as part of a “deep rooted conspiracy and nexus to sabotage the national interest”.

Citing three police FIRs and four daily diary reports, the PSA dossier described Sheikh as an “over ground worker” of militants who was involved in “anti-national” activities. Without citing any evidence, the PSA dossier alleged that Sheikh was planning to carry out an attack on the Pakal Dul power project.

The dossier also alleged that Sheikh, who had participated in protests seeking justice for the family of Dar after his tragic demise, was “provoking the youth … in the name of jihad” which was “highly prejudicial to the security” of Jammu and Kashmir.

Court's observations

However, after pursuing the records and hearing Sheikh’s counsel and senior advocate Sheikh Shakeel Ahmad, the court criticised the administration for invoking “stale cases” filed in 1997, 2015 and 2019 against the activist to detain him under the controversial legislation which has been termed as a “lawless law” by Amnesty International.

The court observed that Sheikh was acquitted in the 1997 case on April 24, 2004 while he was given bail in the other two. Citing a Supreme Court judgement, the court observed that the cases, which have “no proximate and live link” to the alleged offences mentioned in the dossier, can’t be used as grounds for preventive detention.

In a significant observation, the court took the state to task for using daily diary reports (DDR) recorded against Sheikh at some police stations in Kishtwar district for justifying his detention under the controversial law.

The DDRs have often been cited in police dossiers as a justification for detaining suspects in Jammu and Kashmir under the PSA. However, the high court held that it was an illegal measure.

“Merely recording DDRs alleging no specific acts cannot be the ground to detain a person. It is surprising that if the acts mentioned in the DDR entries are criminal acts and are cognizable in nature, then why [has[ the state not filed any FIR,” the court observed.

It added: “If at all those acts mentioned in DDRs make out any criminal offence, what prevented the State to file a First Information Report is shrouded in mystery".

The J&K high court order comes days after the administration reportedly invoked 16 DDRs to book Aam Aadmi Party’s J&K chief and Doda East MLA Mehraj-ud-Din Malik under the PSA.

The PSA dossier against Malik, which his legal team is preparing to challenge in the high court, also reportedly mentions 18 FIRs. The AAP leader has not been convicted in any of them so far.

Ahmad, counsel of Sheikh, had also challenged his PSA detention order for violating Article 22 (5) of the Constitution, under which a person detained under preventive laws must be informed of the grounds and given opportunity to make a representation against the order.

Ahmad had also challenged the detention order for violating section 13 (1) of J&K Public Safety Act, 1978 under which the detaining authority must communicate the grounds for detention to the detained person within ten days from the date of detention in a language they understand and provide them an opportunity to make a representation against the order.

In both the instances, the court ruled that the legal procedure for detaining Sheikh was not followed by the administration which “incapacitated him in making an effective and meaningful representation” against the detention order.

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