Source: The Hindu

Introduction

The Jammu & Kashmir High Court has recently granted bail to a journalist in the case of Peerzada Shah Fahad v. UT of J & K (2023). The court also set aside several charges levelled upon him under Indian Penal Code, 1860 (IPC) and under Section 18 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). And quashed the detention order challenged in this case.

How Unlawful Activities (Prevention) Act, 1967 was Criticized in the Judgment?

• The use of UAPA to arrest and detain people is criticized for being applied in situations not directly linked to violence.
• The vagueness of terrorism offences in UAPA allows broad interpretation, making seemingly innocent acts, like posting an article online, appear as preparatory acts for terrorism.
• UAPA also changes normal legal procedures, such as restricting bail under Section 43-D (5) if police materials suggest accusations are ‘prima facie’ true.
  • These factors led to the arrest in Peerzada Shah Fahad case.
• The High Court of J&K emphasized the need for careful enforcement of anti-terror laws, given their significant impact on personal liberty.

What were Court’s Opinion on Preventive Detention in Peerzada Shah Fahad v. UT of J & K. Case?

• Preventive Detention:
  • Journalist Fahad Shah was placed under preventive detention with a view to preventing him from indulging in the activities which are prejudicial to the maintenance of public order.
  • This order of preventive detention was made under Section 8 of the Jammu & Kashmir Public Safety Act, 1978.
• Contentions of Detenu:
  • The detenu said that he was unable to file a meaningful and effective representation to the appropriate authority against his detention and he has not been provided a copy of dossier, material or other records.
  • Therefore, the action of the respondents is contrary and against the mandate of law in terms of Article 22 (5) of the Constitution of India, 1950 read with Section 13 (2) of the J&K Public Safety Act, 1978.
    • Both of the provisions talk about communicating the grounds of order of arrest or detention and giving opportunity to represent.
• Court’s Observations:
  • The court said that no compelling reasons have been given or shown by the detaining authority while passing the impugned order against the detenu when he was already in custody under IPC.
    • In absence of any compelling reasons, the order of detention cannot sustain the test of law
  • Court also observed that, it is emphatically clear that maintenance of public order and Security and Sovereignty of the country are two distinct expressions and have different connotations and are demarcated on the basis of gravity.
  • They cannot be used simultaneously which clearly proves beyond any shadow of doubt that the detaining authority has not applied its mind while passing the order of detention.

What are the Landmark Cases Cited by the Court in Peerzada Shah Fahad v. UT of J & K. Case?

• Abdul latief Wahab Sheikh v. B. K. Jha (1987):
  • The Supreme Court said that it is only the procedural requirements, which are the only safeguards available to detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority.
• Mohammad Maqbool Beigh v. State of J&K (2007):
  • J&K HC held that the authority while passing the detention has to give the compelling circumstances on the basis of which he proceeds to direct preventive detention of the detenu.
• Thahira Haris v. Government of Karnataka (2009):
  • The SC classified Article 22(5) of Constitution in the following points:
    • The grounds on which the detention order is passed must be communicated to the detenu as expeditiously as possible and
    • proper opportunity of making representation against the detention order be provided.

Conclusion

The Indian government has a history of restricting freedom, often using laws like UAPA to arrest people for alleged offenses. However, courts emphasize that citizens can challenge such actions and hold the government accountable. The court reminds everyone that questioning the government's actions is not only allowed but also supported by the Constitution, and it's the right path to ensure personal liberty.