In a significant legal development dated December 5, 2023, the High Court delivered a landmark judgment, setting aside the detention order against Asif Sultan.
The ruling, pronounced by Justice A. Rahman, highlighted critical procedural flaws leading to the detainee’s immediate release.
The detention, as per Order No. DMS/PSA/30/2022 dated April 9, 2022, authorized by the District Magistrate of Srinagar, aimed to prevent Asif Sultan from allegedly engaging in activities detrimental to the State’s security.
“The main grounds on which the detention is sought to be quashed are that the grounds of detention are vague, indefinite, cryptic, inasmuch as the detaining authority has not attributed any specific allegation against the detenu; that the detaining authority has not furnished the material including dossier, relied upon by it, to detenu to enable him to make an effective representation by giving his version of facts attributed to him and make an attempt to dispel the apprehensions nurtured by detaining authority concerning involvement of detenu in alleged activities,” the petitioners argued.
The court in its judgement highlighted the fundamental importance of providing detainees with the necessary material forming the basis of a detention order.
The court of Vinod Chatterji Koul underscored that a detainee’s exercise of their Constitutional and Statutory rights, as guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, cannot be meaningful unless they have access to the materials forming the grounds for their detention.
The court emphasized that for a detainee to effectively contest their detention, it is imperative that they have access to all pertinent materials. It was articulated that without access to this crucial information, a detainee would be unable to provide an effective representation against the detention order.
Citing legal precedents such as Thahira Haris Etc. Etc. v. Government of Karnataka, Union of India v. Ranu Bhandari, and others, the court established that failure to provide the material on which the detention order is based renders the detention order illegal and unsustainable.
Furthermore, referencing the Supreme Court’s stance in Abdul Latief Abdul Wahab Sheikh v. B.K. Jha, the court emphasized that procedural requirements are essential safeguards for detainees, stressing that these must be diligently followed and complied with by the authorities.
The ruling highlighted the non-compliance of procedural requirements in the case under consideration, concluding that the detention in question ought to be quashed due to this failure to adhere to the mandated procedures.
Kashmiri journalist Asif Sultan was Sultan was in April 2022, booked under the Public Safety Act (PSA). This happened five days after he was granted bail by a court in Srinagar on April 05, 2022.
However, he was immediately taken in for questioning by the CIK, after which he has been taken into detention under the PSA, again.
Asif had been languishing in Central Jail, Srinagar for almost four years. Several international organizations including the Committee to Protect Journalists (CPJ) have demanded the immediate release of Asif Sultan who worked as an editor with Kashmir-based news magazine- Kashmir Narrator.
Sultan who was arrested on August 27, 2018, was repeatedly denied bail. His trial began in June 2019.
Sultan was detained during a nocturnal raid from his home in Batamaloo area of Srinagar on charges of ‘harbouring militants’ and subsequently booked under the draconian Unlawful Activities Prevention Act (UAPA).
In February 2021, the Clooney Foundation for Justice had said that they will monitor Asif’s case closely through its Trial Watch programme. In a statement, which came a day after a court hearing in Srinagar, regarding Sultan’s bail application.
Key Excerpts from the Judgment:
Regarding Missing Material: “Detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights unless and until the material on which detention order is based is supplied to him.” (December 5, 2023).
On Fundamental Rights: “The failure on the part of the detaining authority to supply the material relied upon at the time of making the detention order renders the detention order illegal and unsustainable.” (December 5, 2023)
Emphasizing Procedural Lapses: “Procedural requirements, the safeguards available to the detenu, have not been followed and complied by the respondents in letter and spirit.” (December 5, 2023)
The court highlighted precedents from various cases, including Thahira Haris Etc. Etc. v. Government of Karnataka (AIR 2009 SC 2184), reaffirming the significance of these principles in upholding justice.
This decisive judgment, delivered by Justice A. Rahman, revolved around critical procedural lapses, culminating in the immediate liberation of the detainee.
The detention order, identified as Order No. DMS/PSA/30/2022 dated April 9, 2022, issued by the District Magistrate of Srinagar, aimed to prevent Asif Sultan Saida from purportedly engaging in activities prejudicial to the State’s security.
The court vehemently highlighted Asif Sultan’s right to access all materials forming the crux of his detention.
Emphasizing the detainee’s entitlement to crucial documents, Justice VC Koul underscored that the detainee could not effectively contest the allegations or present his innocence without access to the essential materials.
Consequently, the court deemed the detention order illegal and unsustainable due to the failure to provide these pivotal materials.