PSA operated against Alam in unfair, unjust manner: HC

Srinagar: The high court ordered the release of senior resistance leader Masrat Alam from detention under the Public Safety Act, saying the law has been “operated against him in an unfair, unjust and unreasonable manner.”
“Preventive detention is undemocratic and repugnant to rule of law. It violates fundamental principle of criminal jurisprudence, which stresses on presumption of innocence of the accused till he is proved guilty in a fair and transparent trial,” Justice Hasnain Massodi said in his 17-page judgment, while quashing Alam’s latest of the nearly 20 detentions under the PSA in the past 25 years.
Under this law, a person is detained on mere suspicion and is held in custody without trial for years in the state even though the Section 8 of the Act itself states that it can remain in force for three months after state government’s approval and can be extended to only one year under all circumstances.
“It not only runs contrary to Constitutional ethos but also bruises the Gandhian thought, which forms warp and weft of our socio-political fabric.”
Alam was ordered to be detained under the PSA by the ruling PDP-BJP government to calm down “anger” expressed by Prime Minister Narendra Modi against his release.
The 43-year-old, who apparently is being dubbed as a successor to octogenarian Hurriyat (G) Chairman Syed Ali Geelani, was released after a 53-month-long captivity on March 7.
To discourage repeated detentions under PSA, courts have held that the second detention order can be passed only if there are fresh grounds. The courts have made it clear that the fresh grounds cannot mean the apprehension expressed by authorities or the police that the detainee might create trouble on his release.
“In this case, (Alam), as stated by (the authorities), is accused in as many as 27 criminal cases and instead of taking effective steps to conclude investigation and to prosecute criminal cases pending against (him) and to oppose grant of bail or even seek cancellation of bail wherever necessary, (official authorities) have resorted to his detention under the Act. If (Alam) is to be believed, (the authorities) have in all slapped 19 detention orders on (him) in the past two-and-a half decades,” the court said, while observing that Alam has suffered detention for most part of the past 25 years with brief intervals.
“Such recourse is repugnant to spirit and mandate of Articles 21 (right to personal liberty). The Act has been operated against (Alam) in an unfair, unjust and unreasonable manner, not in tune with fundamental right to life and personal liberty, guaranteed under Chapter III of the Constitution,” the court said.
A resident of Old Srinagar’s Zainndar Mohalla, Alam had challenged his detention order through advocate Mian Abdul Qayoom mainly on the ground that the authority failed to provide him material on the basis of which he was detained.
“Perusal of detention record would reveal that material relied upon by detaining authority and mentioned in grounds of detention has not been furnished (to Alam),” the court said.
The court observed the grounds of detention furnished by authorities mostly refer to “alleged omissions and commissions attributed to him in regard to (agitations in) 2008, 2009 and 2010.”
“Such grounds of detention, obviously, were stale and rot available to pass fresh detention, a few years after such events are alleged to have taken place. Furthermore, same grounds were urged in support of previous detention orders, quashed by the court,” Justice Massodi said, observing that that once the detention order is quashes, the grounds in support of such order loose all significance and cannot be used to pass fresh detention order.
The latest of the PSA detention orders on Alam was slapped in April and it followed soon after Indian media channels launched a vicious campaign against his release. The BJP dissociated itself from the decision to release him. Rather, it pulled up its alliance partner PDP, saying the party was not taken into confidence while deciding on his release.
Soon the issue rocked Indian Parliament and Prime Minister Narendra Modi said that Alam’s release was unacceptable and ordered without his government’s consent.
“Repeated detention orders — one after other, in effect perpetuating preventive detention (in present case for two and half decades except brief intervals), therefore, would offend spirit of Article 21 of the Constitution,” the court said.
Even if preventive detention law does not expressly forbid such a course, the court said: “Framers of the Constitution could have least anticipated that scope for preventive detention law left in Article 22 of the Constitution, would lead to such consequence and the law so enacted would make it possible for preventive detention of a person facing criminal charge, for a substantive part of his life. The order impugned deserves to be set-aside on this ground alone.”
The court said no emphasis was needed that preventive detention was an extraordinary measure meant for extraordinary situation and that law enforcing agencies are to have recourse to preventive detention only in case an effort to resist grant of bail to him fails or there is a strong suspicion that accused may be let off on bail.
“(Alam), as already pointed out, was in police custody on the date impugned order was made and (the authorities) without waiting for outcome of application fell back upon the (PSA),” the court said and quashed Alam’s latest PSA order, issued by District Magistrate, Budgam.
“(Alam) be released from preventive detention under order (No.DMB/ PSA/02 of 2015 dated 21st April 2015,” the court said.