The Jammu and Kashmir High Court has ordered the administration to compensate the former spokesperson of the outlawed Jamaat-e-Islami for the “illegal detention,” quashing his detention under the Public Safety Act (PSA).
The PSA permits the government to hold someone without charge or trial for up to two years; this is the first time the court has penalized the state for detention under PSA.
In his judgement Rahul Bharti said, “This court cannot resist but to hold that the preventive detention of the petitioner is mala fide and illegal, ab origine and ab intra. The petitioner has been made to suffer loss of his liberty for a cumulative period of more than 1,080 days of preventive custody, covered under the span of four detention orders in a row from 2019 to March 2024.”
The judgement was given on April 3 but was uploaded on Friday. “(The) latest preventive detention of the petitioner is compounding the illegality, attending the breach and violation of the petitioner’s fundamental right to personal liberty with impunity, and that entitles him to compensation. Therefore, this court, drawing support from the judgement of the Hon’ble Supreme Court of India… reckons this to be a fit case for this court to exercise its constitutional jurisdiction to extend constitutional remedy for grant of compensation in favour of the petitioner for illegal infringement of his fundamental right to personal liberty,” it stated.
The PSA was used to detain Ali for the first time on March 5, 2019. The court annulled the detention on July 11, 2019. The government released another PSA against him on July 19, 2019, eight days after the release order, while he was still being held in custody. This was once more overturned by the court on March 3, 2020. On June 29, 2020, the government released the PSA against Ali for the third time in a row, but the court invalidated it on February 24, 2021, after the he had been out of jail for three months. Fourth detention order was issued on September 14, 2022.
In addition, the court criticized the District Magistrate, Pulwama, and the Senior Superintendent of Police (SSP) for failing to review the earlier rulings nullifying the PSA before to approving the fourth detention order.
The court observed: “If three judgments of this court quashing preventive detention have not been spared a passing glance, lest an application of mind, by the SSP, the District Magistrate, and the Govt. of UT of J&K, how can it be claimed by the three authorities that the fourth-time preventive detention of the petitioner is an outcome of an open and fair mindset acting upon changed factual scenario.”
“Suffice to say that preventive detention of the petitioner is afflicted surely with malice in law, if not malice in fact… The very fact that dossier and the detention order are of same date, that is 14/09/2022, is a testament to the fact that preventive detention of the petitioner was an outcome of a preconceived mindset, and that was to somehow keep chained the petitioner to jail bars even if without any conviction in a criminal case,” the court observed.
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