The journalist had received bail in two cases, but was slapped with the PSA while awaiting a hearing in the third.
MEKHALA SARANPublished: 22 Mar 2022,
Kashmiri journalist Fahad Shah had received bail in two of the three cases against him — the arrests for which had been consecutive — and was awaiting his bail hearing in the third case, when he was slapped with the Public Security Act.
The Jammu and Kashmir Public Security Act (PSA) is a preventive detention legislation which allows the authorities to detain a person without conviction for up to two years if they are deemed a threat to public order or national security. Under it, none of the regular safeguards that are assured to an accused under the criminal justice system apply.
“There is no police complaint, no investigation, no charge-sheet, no judge, no judicial scrutiny. It is just based on police reports, intelligence reports, often very secret information, vague FIRs and the grounds are often not provided to the detainee,” explained human rights lawyer Shrimoyee Ghosh, in conversation with The Quint.
Under the PSA, an accused has a right to challenge his detention before an advisory board, but they are not entitled to representation by a lawyer
District commissioners and district magistrates are the designated authorities for passing such detention orders.
The document enlisting grounds for Fahad Shah’s detention under PSA has been signed and stamped by the Srinagar District Magistrate. It goes on to cast a slew of aspersions on Shah’s “ideology”, journalistic work and motivations.
However, the document does not appear to offer much by way of established facts or evidence, even as it frequently and emphatically deprecates Shah’s social media activity and reportage.
So Why Was Fahad Shah Slapped With PSA?
“You are having radical ideology from your childhood and being a prominent journalist by profession, your approach has been based on creating a rift between the groups of law abiding masses,” reads the document enlisting grounds for Shah’s detention.
However, neither does it explain how the administration has discerned what Shah’s ideology was during his childhood, nor have they provided any explicit evidence to back up their assumption of the same. In any case, no citizen of India under eighteen years of age can be legitimately detained under the PSA, so the relevance of State opinion on Shah’s childhood ideologies remains unestablished, as well.
“You have been found guilty of misguiding common masses by circulating fake news against the Government and its policies,” the document further reads, even as Shah’s “guilt” remains unestablished by courts of law; he has not been convicted in any of the ongoing cases so far.
The document mentions the three cases against Shah, filed in 2020, 2021 and 2022, followed by the claim:
“…on account of your illegal and anti-national activities, substantive laws have been invoked against you but after every release you did not mend your ways despite being given many chances with the hope that you may not indulge in such activities further, but you did not do so yet, and have been found continuously indulging in illegal activities with are highly prejudicial to the maintenance of Security of UT of J&K. (sic)”
It also said: “Whereas being given several chances against the hope that you will live the normal life but after every arrest you get more vicious against the UT of J&K.”ADVERTISEMENTrecommended byOLYMP TRADEA 26-Year-Old Girl From Mumbai Became A Millionaire OvernightLEARN MORE
However, these remarks are factually incorrect as Shah has not been allowed to go home even once since his first arrest on 4 February, despite getting bail in two of the three cases against him.
It seems pertinent to mention that Shah was first granted bail on 26 February, but was arrested in the second case immediately afterwards. Then, on 5 March, he was arrested again in the third case, after having received bail in the second. Finally, while awaiting a hearing for bail in the third, he was hit with the PSA and locked up in preventive detention.
Thus, it remains unclear what release the executive is referring to when they say that “after every release” Shah did not “mend his ways”.
The Quint has been unable to glean any information about Fahad Shah being arrested on any occasion, prior to 4 February, or any case against him besides the three mentioned above. The story will be updated to reflect the same, in case we do.
On the off chance, the document is actually talking about the occasions on which Shah was summoned by police — but not really arrested — another couple of questions may emerge: Were the police expecting him to change his reporting based on their complaints? Should an individual be considered to have stood trial and wrongdoing proved every time they are called in for questioning by the police?
The State also alleged that Shah has developed relations with “various anti-national gangs being operated from the across border”, but did not explain how they arrived at that specific conclusion, either, with no mention of correspondence, meetings or financial transactions.ADVERTISEMENT
More of State’s Accusations, But What About the Courts?
Pointing out that “the SSP Srinagar has reported in the dossier that being a head of Kashmirwalla online news portal you (Shah) are continuously propagating stories that are against the interest and security of the Nation and the stories mostly highlight the allegations of Kashmir conflict and the Indian State highhandedness,” the document went on to allege that through his online news portal Shah has been “continuously propagating stories in a particular selective narrative which is in-line with the ISI/Separatist propaganda.”
“Over the last two years you have followed a selective pattern of disseminating anti-India sentiment in a very subtitle manner mostly though some of the stories are brazenly provocative as well.”
Administrative document on Fahad Shah’s detention
The document also said “even a layman can judge” Shah’s intentions by visiting his social media timeline.
However, courts in Kashmir had found it fitting to grant bail to Shah in a case in which he had been charged under the stringent Unlawful Activities (Prevention) Act, as well as one in which he had been charged under sections 153 (provocation with intent to cause riot) and 505 (statements conducing to public mischief) of the Indian Penal Code.
Shah’s lawyer Umair Ronga had said in a tweet on 14 March that “sensing that the Hon’ble Special Court may grant the bail (in the case that had brought him his third arrest), as the allegations levelled against the accused do not prima facie connect him with the commission on any offence, the authorities have taken recourse to J&K Public Safety Act.”
Thus, Shah’s preventive detention may even be argued as an administrative order meant to bypass the decisions of the courts. In any case, it is reflective of an urgency to withhold a man who is being repeatedly allowed to go home by judges who deem it fit to do so.
Alternative Options, According to the Supreme Court
While adjudicating an appeal filed by the wife of a man placed under preventive detention under the Telangana Prevention of Dangerous Activities Act (another preventive detention legislation) shortly after he was granted bail in a cheating case, the Supreme Court had, in 2021, held that the State should have contested the bail order in a higher court rather than slap an Executive order of preventive detention on him on the ground that, if set free, he would cheat more people.
The State could have, thus, chosen to take this route, as well, in stead of charging Shah with the PSA.
In terms of the Jammu and Kashmir law, the Supreme Court had observed back in the Jaya Mala case of 1982 that:
“It is not for a moment suggested that power under the preventive detention law cannot be exercised where a criminal conduct which could not be easily prevented, checked or thwarted, would not provide a ground sufficient for detention under the preventive detention laws. But it is equally important to bear in mind that every minor infraction of law cannot be upgraded to the height of an activity prejudicial to the maintenance of public order. Non-application of mind of the detaining authority becomes evident from the frivolity of grounds on which the detention order is founded.”
Problems With the PSA
Observing that preventive detention has been used historically in Kashmir, and that even before the PSA “they had a series of similar preventive detention legislations — protected under Article 35(c) — even more draconian than the PSA,” Ghosh told The Quint:
“I don’t think any preventive detention law is constitutional. It shouldn’t be a part of our fundamental rights chapter. And it is very unusual for a liberal democracy to have a preventive detention law like that.”
Further, Ghosh added that “particularly, in Kashmir, it is also being weaponised against particular kinds of profiled people, and used in this kind of routine way — multiple detentions, back to back detentions, holding people for decades under the PSA orders.”
“The purpose of these preventive detention legislations is to deal with political dissent. It is almost a part of the counter-agency apparatus, where any kind of political activity or what the state perceives as a political threat, is translated as a public order and security threat, and the person carrying out such activity is detained.”
The PSA, meanwhile, also accords an unfair advantage to the executive by disallowing legal representation during appeal before the advisory board, exempting the detaining authority from disclosing any information if it so chooses on grounds of public interest, and the prolonged spells for which the detainee can be held on the mere suspicion of the likelihood of an offence.
As pointed out by Ghosh: “Under the PSA, you can hold a person for 3 months, if it is under maintenance of public order. Otherwise, if it is national security, then you can hold them for six months — and it is renewable up to two years in that case.”
This is especially jarring considering that the maximum sentence for the offence of mischief under the IPC is three months, but attempting to abet, provoke or commit mischief that is likely to disturb public order is punishable under the PSA, as well. Even the document on grounds for Fahad Shah’s arrest states:
“Whereas your activities are prejudicial to the security and sovereignty of the country and you always tweet controversial statements and prove the general masses, which causes mischief to disrupt the peace and tranquility in the Kashmir valley.”
Subsequently, it also says: “The aim of preventive measure is not to put restraint upon any individual but a precaution to prevent mischief.”
Thus, should detention for prevention of mischief be as long as, or even greater than, the sentence for the actual offence of mischief?