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regular-article-logo Sunday, 14 July 2024

J&K and Ladakh HC invalidates ‘security of state’ as ground for detaining people under PSA

The order is likely to provide a breather not only to scores of Kashmiris languishing in jail under the PSA but also to dozens of government employees who were terminated without inquiry for being a threat to the "security of the state"

Muzaffar Raina Srinagar Published 20.06.24, 05:33 AM
Representational image.

Representational image. File Photo

Jammu and Kashmir and Ladakh High Court has invalidated "security of the state" as a ground for detaining people under the Public Safety Act (PSA) in Kashmir, arguing its legality no longer holds once the place has been converted from a state to a Union Territory.

The government frequently invokes the “security of the state” for detaining people under the PSA, which allows detention without trial for years.

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The order is likely to provide a breather not only to scores of Kashmiris languishing in jail under the PSA but also to dozens of government employees who were terminated without inquiry for being a threat to the "security of the state".

Last month, Justice Atul Sreedharan had quoted French thinker Voltaire, "Beware of the words ‘internal security’, for they are the eternal cry of the oppressor," before hitting out at the government for frequent application of what is another major ground for denying people bail.

The judge had called the "internal security" ruse to deny bail in anti-terror UAPA cases in the region a "bogey" to overawe judges. He also observed that the "stock arguments" advanced in a UAPA case were that it was against the national interest to let the appellant out on bail as he might interfere with the judicial process and that his release would be counter-productive for the unity and integrity of India.

"These arguments are copy-paste in every case of UAPA," he had said.

In another order passed early this month and made public on Wednesday, Justice Rahul Bharti declared that the “security of the state” was obsolete in the context of Jammu and Kashmir since its demotion to a Union Territory in 2019.

"Under the J&K Reorganisation (adaptation of state laws) Order, 2020, 'Security of the State' obtaining in Section 8(1)(a)(i) came to be substituted by the statutory ground of 'security of the Union Territory of Jammu & Kashmir' meaning thereby if any person is intended to be detained (for) activities prejudicial to the security of the UT of Jammu and Kashmir then there is no occasion (to employ the expression),” the judge said.

"Therefore, an order so passed with the said expression 'Security of the State' being retained as it is, technically disqualifies to be a valid order of preventive detention against a detenue."

These observations came in a case where Baramulla resident Rayees Ahmad Khan challenged his preventive detention under the PSA.

Khan was detained for allegedly being involved in several criminal cases, including kidnapping, theft, housebreaking and drug trafficking. The detention order cited “security of the state” as a reason for detaining Khan.

His counsel had argued that the concept of “security of the state” no longer exists since Jammu and Kashmir became a Union Territory in 2019.

Justice Bharti said that after the abrogation of Article 370 and the reorganisation of Jammu and Kashmir into a Union Territory in 2019, the phrase “security of the state” had been amended to “security of the Union Territory of Jammu & Kashmir” in relevant laws.

Therefore, any reference to “security of the state” in the detention order was found to be procedurally flawed and invalid.

The judge also emphasised that preventive detention was a serious deprivation of personal liberty and must strictly adhere to procedural safeguards outlined in the law.

The court said that even if it was assumed that the security of the state was meant to be the security of the UT, with a caveat “though there cannot be any such assumption”, none of the FIRs lodged against the accused related to the security of the UT (as they dealt with non-militancy crimes).

The court criticised the detention order’s grounds, calling them “mere hallowed recitals just for the sake of statement which by no sense of imagination and inference, can be said to make the petitioner a case for suffering preventive detention”.

Following these observations, the court ruled Khan’s detention was illegal and ordered his immediate release.

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