J&K’s Public and Safety Act: An individual's plight stretching over four years

On April 3, 2024, the Jammu & Kashmir and Ladakh HC at Srinagar quashed a preventive detention order, the fourth in a row, passed against a 60-year-old petitioner, Advocate Ali Mohammad Lone. From March 5, 2019, to September 14, 2022, the State kept imposing preventive detention orders, under the Jammu and Kashmir Public Safety Act (PSA), against the petitioner whom they claimed was a “threat to the security of the state.” What was strange about these orders though was that the three prior orders dated March 5, 2019, July 19, 2019, and June 29, 2020, had all been quashed by the same HC.

Lone was first arrested in 2019 under the PSA, while already in custody on the charges of rioting and unlawful activities. The detaining authority cited three previous cases of rioting and unlawful activities as one of the reasons for the detention order. However, the court quashed his detention order on July 11, 2019, on the ground that the detaining authority failed to mention that the petitioner had already been granted bail in all three rioting cases mentioned by the detaining authority. “Non-mention about the grant of bail is serious lapse which in turn gives rise to the inference that there is non-application of mind,” the HC stated. The court also noted that the petitioner had not been provided the requisite information to enable him to defend himself. Further, it noted that the detention order used the terms “maintenance of public order" and the “security of state” interchangeably, which reflected a clear non-application of mind. It is also pertinent to note that the petitioner was already in police custody when this detention order was passed.

However, before the petitioner could be released, he was slapped with another detention order dated July 19, 2019. The petitioner again challenged this order, and while quashing this fresh detention order on March 3, 2020, the HC noted that the petitioner, yet again, wasn’t furnished the requisite material which formed the basis of the detention order.

Subsequently, the petitioner was also granted bail on April 11, 2020, in another criminal rioting case. However, despite being granted bail in the rioting case, the detaining authority issued another preventive detention order premised on the very same rioting case on June 29, 2020. He again moved the HC challenging the detention order. The State vehemently defended its orders stating that they were passed as the petitioner, who had been an active member of the banned Jamaat-e-Islami since 1987, was instigating the youth and attempting to disturb the peace. It cited all his previous cases since the 1990s as enough evidence to detain him. The J&K court on February 9, 2021, dismissed the State claims and while quashing the detention order noted yet again that the detaining authority had not made any mention of the bail order and the detention order was premised on material which had already been found wanting by the court on two prior occasions.

Despite the HC quashing three detention orders, yet another preventive detention order was passed against Lone on September 14, 2022. While quashing the fourth order, the court questioned the fairness of a fourth detention order when the previous three on the same grounds had already been quashed. “Suffice to say that preventive detention of the petitioner is afflicted with malice in law, if not malice in fact, at the end of the entire chain of the preventive detention proposing, making and confirming authorities… This court can not be diplomatic to avoid observing that if left to the whims and fancies of the SSP Pulwama and the respondent No. 2- District Magistrate, Pulwama then the judgment of the high court of J&K and Ladakh quashing a given preventive detention of a person is of no interest to them and same very person by repeat of the pretext can be made to suffer cyclic preventive detentions to outnumber judgments quashing the given preventive detention,” the HC stated.

The high court also noticed that the reason for the preventive detention – “security of the state” finds no mention in the PSA. The petitioner was subject to 1,080 days of preventive detention from 2019 till date. The court found this a fit case for compensation and ordered the State to pay him five lakhs within three months of the judgment.

Patna HC sets precedent in custodial torture cases

On April 23, the Patna HC ordered the State to pay compensation to a victim of police abuse in Dinesh Singh v. State of Bihar and Ors. Here, the petitioner was the father of a young boy who had been arrested from the Siwan district court by the police on July 4, 2017, at 2:30 PM, with a case registered under Sections 326, 307, and 34 of the Penal Code, 1860 and Section 27 of the Arms Act, 1959.

Subsequently, he was taken to the Muffasil police station and kept in custody. According to the police, he suddenly complained of breathing problems and was taken to the doctor at 5:00 PM, where eight injuries caused by blunt and hard substances were recorded. As the victim’s condition deteriorated, he was shifted to the Patna Medical College and Hospital where he was treated till July 7, 2017. Meanwhile, on July 5, the victim had lodged a complaint citing police torture and custodial violence. On July 8, when he was produced before the magistrate, he orally mentioned the torture and showed his wounds to the magistrate, however, the magistrate merely remanded him to judicial custody and directed the medical officer to treat him well. The victim was finally acquitted in the case on February 29, 2020.

The court noted that it was an admitted fact that the victim was in the custody of the police right from the time of his arrest. Further, he was not injured when arrested. Thus, it was the responsibility of the police to explain how he suffered injuries while in custody. “On their (police) failure to provide such information, they are liable to be prosecuted. It also ordered the State to pay a compensation of ₹2.5 lacs to the victim within 4 weeks of the order,” the court stated while ordering for an FIR to be registered against the police personnel in the station and prosecution of the perpetrators.

Police persecution and custodial torture is not new in India. In 1993, the Supreme Court in the landmark case of Nilabati Behera v. State of Orissa, had ordered the State to pay compensation to the mother of a victim who had died in police custody. While deciding the D.K. Basu case in 1997 the Supreme Court lamented upon custodial violence and noted, “ It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless.”

Twenty-seven years later, sadly the words still hold true. Every year we hear of cases of excesses committed by the police and occurrences of custodial death and torture. The National Human Rights Commission (NHRC) reported a total of 2,152 cases of deaths of persons in jails and 155 deaths in police lockups, i.e. a total of 2,307 persons in 2021-2022. However, it is important to remember that these figures account for only the reported cases. Most cases of police violence go unreported. Further, the NHRC itself noted that disciplinary action was taken in only 21 cases.

Police stations as places of violence have become so normalised that most people think twice before going to a police station to file a complaint or seek assistance. The need of the hour is for the implementation of a zero-tolerance policy in cases of police violence, and policing in India needs an overhaul. Quick action and prosecution to make the perpetrator accountable will help in putting an end to this violence.

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.