Jail, Bail, PSA: Fahad Shah's Preventive Detention Follows Familiar J&K Playbook

The journalist had received bail in two cases, but was slapped with the PSA while awaiting a hearing in the third.

Fahad Shah. 

(Image altered by The Quint)

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.”

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.

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.”

Srimoyee Ghosh

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?

Can the Courts Offer Some Relief?

The remedies in the aftermath of a PSA charge are limited in scope and number.

The higher courts have the power to quash preventive detention orders, as was seen with the Allahabad High Court's quashing of Dr Kafeel Khan's detention under the National Security Act. The Jammu and Kashmir High Court has quashed 80 percent of the PSA detention orders challenged before it, according to Amnesty International's 2019 edition of its report on the PSA, 'Tyranny of a Lawless Law'.

However, the high courts tend to get involved in these cases at a much later stage. Detainees are first expected to go through the regular process under the preventive detention law first, which sees them taken before an 'Advisory Board' set up to review such detentions.

When it comes to the PSA, the materials are placed before the Advisory Board within 4 weeks of a person's detention, and it has to see if this was justified within 8 weeks of their detention. The high court tends to look into the sufficiency of reasons for the order only after this stage – which means that a person generally has to spend at least two months in detention under the PSA before the high court takes up their plea.

The Supreme Court can look into whether a PSA order is justified at this early stage itself under a writ of habeas corpus. However, in the aftermath of the abrogation of Article 370, when hundreds of people were detained under the Code of Criminal Procedure and the PSA – including former chief ministers Omar Abdullah and Mehbooba Mufti – the apex court also proved reluctant to go into the grounds for detentions in J&K and instead suggested petitioners should approach the high court first.

Even where these detentions are quashed, though, the court orders often focus on issues of procedure rather than the flimsiness of the grounds under which the detention orders were passed, as Delhi-based criminal lawyer Abhinav Sekhri explained in an article ‘Article 22—Calling Time for Preventive Detention’:

"Thus, we find ourselves in the strange space where courts can exhort about the importance of personal liberty and chastise the executive for failing to dot the i’s and cross the t’s when passing detention orders, and even expand the scope of this procedural regulation, but keep turning a blind eye to the reasons why a person might be arrested and detained in the first place, on mere allegations and not proof of guilt."

PSA Detentions are Not Uncommon — At All

Sajad Gul, 26, another Kashmiri journalist, was first arrested on 6 January and booked under Sections 120B (Punishment of criminal conspiracy), 153B (assertions prejudicial to national integration) and 505 (Statements conducing to public mischief) of the IPC.

However, on 15 January, the Jammu and Kashmir district court at Bandipora granted Gul bail. A day later, a preventive detention order under the PSA was slapped against him and he was shifted to Kot Bhalwal jail in Jammu.

In its 2019 edition of 'Tyranny of a Lawless Law' – which is no longer accessible online in India – Amnesty International had analysed case studies of 210 people who were booked under the PSA between 2012 and 2018.

The report stated that they have found 71 cases of “revolving-door detentions”, where the authorities had either issued a new detention order, or “implicated a detainee in a new FIR, to ensure that they remain in custody.”

Further, the report said that in 90 per cent of the cases they analysed, the detainees faced both PSA detentions and criminal proceedings in parallel, on the basis of the same or similar allegations.

“Estimates of the numbers of persons detained under the Act over the past two decades range from 8,000-20,000, according to Amnesty International,” Ghosh had pointed out in an article from 2017 for Café Dissensus, further explaining that the huge disparity in numbers is “because preventive detention is particularly susceptible to being unrecorded and undisclosed.”

'Fahad's Kafkaesque Detention'

Stating that such acts give the state “the authority to jail the people it does not like without the commission of a crime”, Aakar Patel, former chair of Amnesty International India said:

“On the one hand, the Modi government says it abrogated Article 370 to make laws uniform across India, yet they haven't repealed the PSA, which is a Kashmir-specific law. The PSA doesn’t exist in any other part of the country. The victimisation of Kashmiri journalists, especially Fahad, should stop immediately.”

Fahad Shah is an independent journalist, recipient of the 25th Human Rights Press Award and the editor of The Kashmir Walla.

“Our legal team believes that Fahad’s Kafkaesque detention seems to challenge our judiciary, democratic values, and independent journalism at once,” his team at Kashmir Walla wrote in a statement on 16 March. They further added:

“While we look forward to the day Fahad joins the newsroom again, his family awaits him at home.”