Invasion Of Constitutional Rights Of Detenu: Jammu & Kashmir and Ladakh High Court Quashes Preventive Detention Order Against Journalist Majid Hyderi

The Court directed the immediate release of the Journalist (Petitioner), noting that despite the grant of bail, he was not released and came to be placed under preventive detention in terms of the impugned Order issued under the Jammu & Kashmir Public Safety Act, 1978 (PSA). The Bench held that the social media comments/postings of and news items disseminated by the Petitioner did not demonstrate a ‘live and proximate link’ between past conduct and present imperative need to detain him.

A Single Bench of Justice Vinod Chatterji Koul held, “The inclusion of an irrelevant or non-existent ground, among other relevant grounds, is an infringement of the first of the rights and the inclusion of an obscure or vague ground, among other clear and definite grounds, is an infringement of the second of the rights. In either case there is an invasion of the constitutional rights of the detenu entitling him to approach the Court for relief. The reason why the inclusion of even a simple irrelevant or obscure ground, among several relevant and clear grounds, is an invasion of the detenu’s constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds, and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority.”

Senior Advocate M.Y. Bhat represented the Petitioner, while Senior AAG A.R. Malik appeared for the Respondents.

Brief Facts

The Petitioner challenged the detention, arguing that he was a law-abiding journalist of international repute who had been targeted for his investigative reporting. He contended that he had exposed the alleged misconduct of influential and well connected individuals, who later sought to restrain him. Following his reports, the Petitioner was implicated in an FIR under Sections 500, 177, 386, and 120-B of the IPC. Though he secured bail, he was placed under preventive detention on the same day, without being released from custody.

The Respondents argued that the Petitioner advocated for separatist and secessionist ideologies through electronic means to promote anti-India sentiments. They alleged exploitation of the profession of journalism to disseminate false information on the Petitioner’s part.

“The detenu’s actions, which have included glorifying violence, misrepresenting facts, and peddling secessionist narratives, have posed a severe threat to the peace and security of the State,” the Respondents further alleged.

Court’s Reasoning

The High Court noted that preventive detention must be based on a ‘live and proximate link’ between the prejudicial activities and the purpose of detention.

The Bench remarked that the “perusal of the grounds of detention reveals that the grounds are vague and ambiguous, and do not refer to any date, month or year of the activities, which have been attributed to detenu. Detention in preventive custody on the basis of such vague and ambiguous grounds of detention cannot be justified. It may not be out of place to mention here that preventive detention is largely precautionary and is based on suspicion.”

About the social media postings/reportings, the Court referred to its decision by the Division Bench in Sajad Ahmad Dar v. Union Territory of J&K (2024), wherein it was held that “negative critic towards the policies of Government of Union Territory of Jammu and Kashmir cannot be said to be a ground to be relied upon for placing a person under preventive detention, that too without any specific instance as to how such social media comments had caused any problem muchless public order problem to the government.”

“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”. Instead of appreciating the detenu, he has placed under preventive detention. Instead of rewarding mother of detenu, she has been forced to see her son detained in preventive detention for none of his faults,” the Court emphasised.

Consequently, the Court held, “For the reasons discussed above, Detention Order No.DMS/ PSA/ 65/2023 dated 16.09.2023 passed by District Magistrate, Srinagar, is quashed. Respondents are directed to release the detenu forthwith, provided he is not required in any other case.”

Cause Title: Majid Hyderi v. Union Territory of J&K & Ors. (HCP No. 133/2023)

Appearance:

Petitioner: Senior Advocate M.Y. Bhat; Advocates Pince Hamza and Sajid Bhat

Respondents: Senior AAG A.R. Malik; AC Rahella Khan

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