Observing that preventive detention cannot be used as an “instrument to keep a person in perpetual custody without trial,” the Jammu and Kashmir High Court has quashed the detention of a Kashmiri youth under the Public Safety Act (PSA).
Justice Tashi Rabstan Thursday quashed the detention of Ishfaq Ahmad Kumar of Baramulla, who was booked under the PSA by the district magistrate for his alleged involvement in stone- pelting incidents.
Ishfaq’s counsel Wajid Haseeb submitted that the youth was arrested by government forces in November 2016 from his home and taken to some forces’ camp, where he was detained for many days. Thereafter, he was shifted to police station Baramulla and “implicated” in case (FIR no.266/2016).
On November 15, he was released from custody after a court granted him bail.
However, Ishfaq was summoned to police station Baramulla in the first week of July 2017 and was detained for several days and consequently “implicated” in case FIR (no.259/2016), the counsel said. Ishfaq was granted bail in the fresh FIR but he was not released as bail order was served to the police authorities. Instead, the counsel said, he was shifted to Central Jail Kotebhalwal, Jammu, which was followed by the PSA detention order.
The high court observed that the offences alleged to have been committed by the detainee were such as to attract punishment under the prevailing laws, but that had to be done under the prevalent laws and taking recourse to preventive detention laws was not warranted.
“Preventive detention involves detaining a person without trial in order to prevent him from committing certain types of offences.
“But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detainee may have committed,” the court observed.
“After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial,” the court said.
It said that classifying the detainee as a “notorious stone pelter’’ cannot be sufficient to invoke statutory powers of preventive detention as it quashed Ishfaq’s PSA.
The court referred to a Supreme Court verdict in which it held as illegal the preventive detention of a person by a state after branding him a “goonda’’ merely because the normal process was ineffective and time-consuming in curbing the evil he spreads.
Described as a lawless law by rights groups like Amnesty International, PSA allows for preventive detention for people against whom there may be no recognised criminal offence, providing for detention for a maximum of two years in the case of persons acting in any manner “prejudicial to the security of the state.”
The Act was first promulgated in 1978 by the Sheikh Abdullah government as an administrative detention aimed at keeping timber smugglers “out of circulation” but as various rights groups have pointed out, the Act has been used by the State over the past several decades to “curb political dissent.”
According to Amnesty’s 2010 report ‘A Lawless Law: Detentions under the Public Safety Act,’ at least 10,000-20,000 people had been detained under PSA in Jammu and Kashmir.
“The Indian state of Jammu and Kashmir is holding hundreds of people each year without charge or trial in order to ‘keep them out of circulation’… the Public Safety Act (PSA) is used to secure the long-term detention of individuals against whom there is insufficient evidence for a trial,” according to the Amnesty report.
“The Jammu and Kashmir authorities are using PSA detentions as a revolving door to keep people they can’t or won’t convict through proper legal channels locked up and out of the way,” the rights group had said, adding “Hundreds of people are being held each year on spurious grounds, with many exposed to higher risk of torture and other forms of ill-treatment.”