Srinagar: The High Court of Jammu and Kashmir and Ladakh has overturned a preventative detention order issued under the Jammu and Kashmir Public Safety Act (PSA) against Srinagar-based journalist Asif Sultan. On December 7, Justice Vinod Chatterji Koul observed that the respondent authorities did not observe and comply with the procedural requirements in letter and spirit while detaining Asif. "The court orders his release." In 2018, Asif was detained in a case under the Unlawful Activities Prevention Act (UAPA) as a journalist for a now-closed monthly news magazine.
Days after a Srinagar court last year granted him bail in the UAPA case, he was again arrested under the PSA. The American National Press Club has presented him with the 2019 John Aubuchon Press Freedom Award. The court stated that in passing the preventive custody order against Asif, the detaining authority appears to have taken his suspected involvement in the UAPA case into consideration.
It was noticed, however, that the detention record does not show that copies of the First Information Report (FIR) or statements recorded under Section 161 of the Code of Criminal Procedure (CrPC) obtained in connection with the investigation of the UAPA case were ever provided to him.
According to the court, the detention order was issued based on these documents, which are relevant to the facts and circumstances of the preventative detention order. In light of this, the court concluded that Sultan could not be expected to meaningfully exercise his right to counsel against the detention order.
"It is only after detenu has all the said material available that he can make an effort to convince detaining authority and thereafter the government that their apprehensions vis-à-vis his activities are baseless and misplaced," the court stated. Justice Koul went on to say that if the detainee is not given the materials on which the detention order is based, he would be unable to make an effective representation against it.
The inability of the detaining authority to deliver the material renders the detention order unconstitutional and unsustainable, according to the court. The court invalidated Sultan's detention order after concluding that procedural standards were not followed. The court stated in its decision to release Asif, "As a corollary, respondents are directed to set the detainee at liberty forthwith provided he is not required in any other case."
On November 9, a High Court bench led by Chief Justice K Kotiswar Singh quashed the Public Safety Act (PSA) against Kashmiri journalist Sajad Gul, calling it an "abuse of preventive law."
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