Srinagar: Asserting that there has to be a live link between the prejudicial activities of a person and the slapping of the Public Safety Act (PSA) against him, the High Court of J&K and Ladakh has quashed the detention order against the journalist Majid Hyderi and directed his release from the jail.
“Preventive detention must be supported by the existence of a ‘live and proximate link’ between past conduct and present imperative need to detain a person,” recorded Justice Vinod Chatterji Koul.
The judge held that the order of preventive detention must be passed by due application of mind and taking note of relevant factors.
“If order of detention is passed on the basis of incidents which are stale, it is often stated that incident not being of relevance to establish imperativeness in passing an order of detention and such order passed must be treated as being based on extraneous factors”.
The District Magistrate, Srinagar in September 2023, had passed an order that placed Majid Hyderi under preventive detention (PSA).
“The detenu, (Hyderi) as a journalist, published an investigative story, in which he exposed one of the influential and well-connected individuals, a proclaimed offender with various criminal cases against his name based on his extensive with a view to serve the public interest,” stated Hyderi’s petition.
It said, “The influential person used his nefarious designs by filing a civil suit for defamation and permanent injunction before the court of 1st Additional District Judge, Srinagar, in order to restrain him from publishing further articles. But the interim relief was dismissed”.
The petition also stated “the influential individual filed an application under Section 156 (3) Cr.P.C., which was forwarded to SHO P/S Sadder for conducting an investigation. The police, despite non-disclosure of any cognizable offence, lodged a frivolous FIR No.88/2023 dated 14.09.2023 under Section 500, 177, 386, 120B IPC (defamation, false information, putting a person to fear of death, criminal conspiracy, etc,) against Haydri following which he was arrested”.
It is also being submitted that the deteue Hyderi approached the court for grant of bail which was granted. But despite the grant of bail the detenu was not released and was placed under preventive detention PSA by DC Srinagar.
Respondent authorities insist that the detenu Hyderi is not a peaceful citizen, is involved in anti national/ nefarious activities and his activities pose a serious threat to national security or public order.
They stated “detenu, operating within the realm of journalism, has repeatedly engaged in actions that are not only provocative but also gravely endanger the security and integrity of India. He advocates for separatist and secessionist ideologies through electronic means and promotes anti-India sentiments”.
The detenu placed on record many news stories and articles to counter the official allegations against him including the one against Hurriyat Conference’s expired chairman Syed Ali Shah Geelani, captioned “Separatist leader, Sarkari Naukri: Why it’s time to investigate Syed Ali Shah Geelani’s grandson’s government job”.
Justice Koul held that certainly there is no cogent explanation coming to fore from perusal of the grounds of detention with reference to the live-link between the prejudicial activities and the purpose of the detention.
Resultantly, he found the detention order against Hyderi liable to be quashed.
The bench said, “nonetheless, when there is an undue and long delay between the prejudicial activities and the passing of the detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned when called upon to answer, and further the court has to investigate whether the casual connection has been broken in the circumstances of each case”.
He ordered “preventive detention must be supported by the existence of a ‘live and proximate link’ between past conduct and present imperative need to detain a person. It has been very often held that orders of preventive detention must be passed by due application of mind and taking note of relevant factors. If order of detention is passed on the basis of incidents which are stale, it is often stated that incident not being of relevance to establish imperativeness in passing an order of detention and such order passed must be treated as being based on extraneous factors”.
The requirement of ‘proximity/live link’ is required to demonstrate imperativeness in invoking the power of preventive detention more so where the criminal prosecution is pending which proceedings may culminate in imposition of a punitive sentence, said the judge.
The court mentioned the role of Hyderi’s mother at All India Radio Srinagar during the heydays of militancy, and noted had the records been heeded by the detaining authority, “things would have been different and the detenu would not have been languishing in jail but would have been, at this moment, serving the nation”.
It is very unfortunate that respondents, in their Reply Affidavit, have labelled the detenu as “not a peaceful citizen of India”. If we treat detenu, like peace loving citizens, in such a harsh way, by bashing and thrashing them, and placing them under preventive detention, then we will lose “peace” and “peace loving citizens”, it said.
The court noted that the detaining authority, in the grounds of detention, has made reference to case FIR no. 88/2023. This FIR relates to defamation matter, which has been registered after receiving a copy of complaint/application under Section 156(3) Cr.P.C. from the concerned court Srinagar.
“It is startling that the detaining authority has made use of this FIR to show his subjective satisfaction derived therefrom for placing the detenu under the preventive detention, oblivious of the fact that the allegations contained therein will not affect sovereignty, security and integrity of the world’s largest democratic country – India. The activities alleged in the aforementioned FIR, per se, do not attract or entail the provisions of the J&K Public Safety Act,” said the court.
