The right to liberty is considered the most precious human right by all the civilized people and the nations of the world, and very strong safeguards have been provided in the legal systems prevalent in the countries ruled by law. All other fundamental human rights become meaningless for a person deprived of his/her personal liberty. Nobody can be deprived of his life and personal liberty without following the due process of law or the procedure established by it. This is an unchallengeable principle found in all the written constitutions of the world and upheld by the judicial verdicts including that of India.
Under the general law, a person cannot be arrested and deprived of his personal liberty unless there is reasonable basis against him for being involved in the commission of any such crime where the police or any other law-enforcing agency has the authority to arrest him and thereby deprive him of his personal liberty and there are a number of legal as well as judicial safeguards available to such an arrestee which are to be fulfilled by the arresting authority in letter and spirit. It means nobody can be deprived of his personal liberty unless a valid law allows doing so for bringing the accused person before the justice system run by the courts which conduct the trial of the charges against the person so produced.
But there is another set of laws framed by the government which is mostly misused and abused by the state administration against its political/ideological or personal rivals in the name of upholding the public order or the security of the state. These laws have been given validity under the constitution as well as upheld by the judiciary, subject to certain mandatory safeguards. These laws are called preventive detention laws.
In India, Article 22 of the constitution gives validity to the detention laws i.e. detaining a person on this reasonable apprehension that in case he is not detained, his activity shall be either prejudicial to the maintenance of public order or endanger the security of the state. The detaining authority, after keenly perusing the grounds of detention, must be subjectively satisfied that the apprehension expressed by the law-enforcing agency is based on reasonable grounds. The authority has not to act according to the recommendation of the agency but subjectively satisfy itself, keeping in view the sanctity of its mandate and the preciousness of the personal liberty of the person to be detained – be, on one hand, the guardian of the fundamental rights of the citizens/persons residing within its legal jurisdiction and, on the other hand, safeguard the interest of the public at large and the security of the state.
The individual interest has to succumb before the public interest and the security of the state if the authority is satisfied subjectively, after going through the whole material produced by the law-enforcing agencies, that the person remaining at large will prove prejudicial to the maintenance of public order or the security of the state, and it is authorized to detain that person accordingly and deprive him of his precious right of the personal liberty and put him behind the bars. The detaining authority has to record in writing his subjective satisfaction while passing the order of detention and has not to act as a signing-machine merely on the recommendation of the agency.
Another constitutional safeguard available to a detainee is that he must be furnished all the relevant material which has been made the basis for passing the detention order by the detaining authority so that the detainee can make an effective representation against his detention to the government. This material must be furnished to him either at the time of execution of his detention order or soon thereafter. Any inordinate delay in furnishing the said material or non-supply is a sound ground for quashing the order of detention, howsoever strong the grounds of detention may be.
But both these constitutional safeguards are generally violated. The detaining authorities work as signing-machines without bothering to go into the material against the detainee for making themselves subjectively satisfied, though they certify falsely that after perusing the relevant material, they got subjectively satisfied. Further, none of the executing officers has been observed, as required by law, informing the detainee that he is legally entitled to make a representation against his detention nor the relevant material is supplied to the detainee as required under the law.
One more safeguard available to the detainee is that he has a right to represent personally before the Advisory Board constituted under the law to scrutinize the legal validity of the detention order and give its opinion accordingly. It has been observed that the Advisory Board, too, works like a signing-machine without going through the material meticulously or as required under the law, and gives its opinion rarely giving any chance to any detainee to be heard personally. The Advisory Board mostly consists of the judicial officers and headed by a retired High Court judge but utterly ignores the legal role it is expected to play for the safeguard of the personal liberty of the detainees. After the receipt of the opinion of the Advisory Board, the government (Home Secretary) confirms the detention order. Here in Jammu and Kashmir, the detention order, if passed on the ground of the maintenance of public order, is imposed for three months and extended after the expiry of every three months up to a maximum period of one year. If the order is passed on the grounds of safeguarding the security of the state, then, initially, it is confirmed for a period of six months and extended after every six months up to a maximum period of two years. Since the imposition of governor’s rule under the Bharatiya Janata Partry (BJP) led Central government, just a few orders of detention have been revoked or considered for revocation, despite the fact that most of these orders are legally defective or passed quite in blatant violation of the legal and constitutional safeguards. It is observed, and keenly so, that the authorities ruling this most unfortunate part of the globe are quite indifferent towards the interests of the people living over here and have not an iota of sympathy for them even on the humanitarian aspects.
The most effective and known-to-all safeguard available to the victims is the judiciary by agitating the matter through the Habeas Corpus writ petitions challenging the detention orders on legal as well as factual grounds. It has been observed that a very small number of detention orders stand the judicial test and a vast majority of them get frustrated after being quashed by the Honourable Court (High Court/Supreme Court) and declared as null and void, but the administration does honour these judicial verdicts in rarest of the rare cases. The jail authorities, before implementing these orders, make sure that the CIK sleuths or the police parties reach the jail gates. As soon as the jail authorities are informed about the arrival of these sleuths, the detainee is released, not for going to his home but for being re-arrested by these alert personnel and whisked away to any CIK centre in any police station whether required in any other case or not.
It is not the judiciary which determines the innocence of a detainee or otherwise, but the police and CID authorities. It has been observed that in most of the cases, the detainees ordered to be released by the judiciary are kept for days or months together in the CIK centres or the police stations without any legal basis, just at the pleasure of the police authorities. It is as such quite obvious that Jammu and Kashmir is the sole part in the Indian domain which is virtually ruled by the police i.e. a police state. When these hapless detainees, facing this dreadful state-sponsored oppression, approach the courts, their concerns and grievances get unnoticed and no special orders or verdicts are given to restrict the misuse and abuse of the preventive law by the police or state administration or to protect the fundamental rights or the personal liberty of these victims of state high-handedness. The lawyers too show their insensitiveness towards their continuing mass oppression by not pleading specifically.
Another aspect of the sufferings of the victims of the misuse of the preventive detention laws is the lack of speedy delivery of justice in the courts. The procedure in the courts is so porous that sometimes even after the expiry of the maximum period of detention, the detainee fails to get justice and his writ petition gets frustrated without being adjudicated judicially. This inordinate delay in the delivery of justice to the detainee is very common as the courts fail to take serious notice of the delaying tactics adopted by the state and its legal counsels by ignoring the court directions. Very little preference is given to these matters (writs) involving the most precious human right of personal liberty. The lawyers representing the detainees, too, are, to some extent, responsible for the delay in the disposition of the detention writs as they give less preference to these cases for want of interest or for receiving humble charges or no charges as some lawyers plead these cases on charity basis.
No effective measures have been taken to stop or restrict the misuse of the detention laws as the keenness is demonstrated only to somehow get the writs disposed of. The legal luminaries have failed to devise means and methods for restricting the abuse of the Public Safety Act (PSA) which is in vogue throughout the valley. The courts too have shown very little suo moto interest towards this important aspect as the guardian of the fundamental human rights. Taking undue benefit of this lukewarm and indifferent attitude of the legal fraternity and the judiciary, the administration reimposes the detention orders one after the other, upon the same person, without having any regard of the laws or the procedure established by law, thereby blatantly violating the fundamental right of liberty of anyone at whim. This administrative despotism has become the order of the day and the judiciary seems to have accepted it as a part of the rule of laws as no notice is taken of it while passing verdicts on such detention orders.
The pleadings in such cases, which are not a few but abundant in number, too seem to be casual on behalf of the lawyers representing the detainees in the courts. In the cases where the court orders to release the detainees, the orders are respected only to the extent that such a detainee is taken out of the jail and handed over to the police or CIK agency wherefrom he is kept under custody in a fake and concocted case to justify his legal detention till another fresh detention order is got passed by the concerned district magistrate who works like a machine on buttons. The district magistrate either ignores the peculiar situation deliberately or is kept unaware of the real situation and thereby the fresh detention order gets signed.
I have a very bitter experience of this state of utter lawlessness and administrative/police despotism like other such detainees who become the victims of this impassive attitude of the judiciary which is considered to be the guardian of the human rights as well as the rule of law. Both are infringed by the despotic police authorities who seem to have lost the sense of humanity despite being a part of the human race.
I was picked up from my home during the intervening night of February 22 and 23, 2019, days before imposing the ban on Jama’at-e-Islami J&K, and locked up in Police Station Kakapora, without following the procedure established by law. On February 25, 2019, I was whisked away to Police Station Ganderbal where I was shown to have been arrested from Biham Chowk on the same day and kept under preventive custody u/s 107/151 CrPC and shifted to Central Jail Srinagar. On March 3, 2019, a police party from Ganderbal executed the order of detaining me under Public Safety Act though I had not even applied for bail for the case I was imprisoned. A writ challenging this detention order was filed before the high court and, in the meanwhile, I was shifted to Kot Bhalwal Jammu Jail on May 4, 2019.
My detention order was quashed by the court and when this order was served upon the jail authorities, I was, instead of being released, handed over to CIK Jammu despite the fact that there was no case pending against me anywhere in the state. The CIK sleuths got a remand in a fake case till I was handed over to another police party from Pulwama on July 17, 2019, which locked me up in Police Station Kakapora on July 19, 2019. Police Station Pulwama got a police remand from the court in an FIR in which I was already bailed out by the competent court in the year 2017 and as such there was no legal justification in showing me arrested in this absolutely fake FIR of 2016. But who is there to challenge this lawlessness and where?
There is no one to listen against this force which has strong political backing and is being used to suppress by the ruling elite whenever any contingency arises therefor.
Suddenly the mind of the police boss changed on the very evening, I was escorted back to Kot Bhalwal Jail under a fresh detention order no. 37/DMP/PSA/2019 slated July 19, 2019, and banished from Kashmir once again. The detention order is virtually an order of banishment, in the past passed by despotic kings against their opponents or those whom they disliked. This second order of detention, based on the same grounds whereon the first was framed, except rearranging some words and sentences, too was put to challenge in the High Court. The court quashed this order too but without taking notice of the utter misuse and abuse of the authority by the detaining magistrate, thereby providing a chance to ignore the validity of the fundamental human rights which virtually seem to have been suspended in the valley of Kashmir. This release order was served upon the jail authorities at a time when the lockdown due to COVID-19 pandemic was at its peak and the usual movement of the traffic and the general public had come to a halt and, due to fear of this contagious disease, there was a general direction to the police and CIK sleuths not to rearrest anyone coming out of jail. In such a situation, I got released on April 11, 2020, after a detention of 14 months. After reaching home, I remained under home quarantine for more than a month and thereafter I visited some places to meet my relatives and friends, particularly those who had lost some family member during my banishment from home.
But again by the show of police despotism, I was picked up from home by a police party from Police Station Kakapora on June 30, 2020, without assigning any reasons, except quoting verbally the direction of higher authorities. This ghost of ‘the direction of higher-ups’ is ruling this unfortunate valley and it is a usual practice going on here since long. I have, in the past 31 years, never seen any police official showing any warrant or giving any lawful reasons while arresting anyone even though there are a number of guidelines issued by the judiciary in particular by the Supreme Court of India to be followed while depriving any person of his/her right of liberty. On reaching the Police Station, I asked the concerned officer about the reasons for my fresh arrest but he expressed his ignorance.
On the next day, I was taken to Pulwama for COVID-19 test and usual medical examination which is superficially done before sending any arrestee to the jail. On the receipt of the COVID-19 test on July 3, 2020, I was straightaway taken to Central Jail Srinagar and detained under a fresh order of detention number 11/DMP/PSA/2020 dated June 29, 2020, with nothing new in the grounds of detention except vague, unfounded and concocted allegations having no proximity at all with this fresh (third consecutive) detention under the Public Safety Act.
Why I became a threat to the security of the state during this gap of two and a half months is nowhere mentioned. None of the acts attributed towards me which may have relevance to my illegal detention is given in the grounds of my detention. This third order of detention, being prima facie illegal and unconstitutional, is under challenge for the last more than six months but due to the procedural complexities and casual attitude of the legal counsels, the writ is yet to be disposed off.
The right to life and liberty, despite being the most precious fundamental human right, is not being given due consideration even in the courts of law which are accepted as the palladium of justice and the guardian of human rights. These cases ought to have been given preference over other matters but such is not the practice going on in our courts with the result that these rights have lost all their importance and relevance in the human society within the precincts of Kashmir valley. No effective voice is raised either by the public forums or by legal fraternity against this lawlessness committed by the state/police administration while depriving the citizens of their cherished human rights without following the due process of law which is mandatory under the United Nations Human Rights Charter as well as the constitution of India supported by the famous judicial verdicts passed by both the High Courts as well as the highest palladium of justice in India called Supreme Court.
Zahid Ali, an advocate by training, is presently lodged in Central Jail at Kot Bhalwal, Jammu. The write-up was received through his family.