Srinagar: It was 4:30 pm on 5 April 2022 when Mohammad Sultan Sayeed received a call from his lawyer asking him to come to the National Investigation Agency (NIA) court in Srinagar, the summer capital of the union territory of Jammu and Kashmir (J&K).
A soft- spoken man, wearing a kurta pajama and a skull cap, Sayeed, 65, hurried over, unaware at the time that this was the call that he and his family had been waiting for the last four years. When he reached the court, Sayeed, a former government private secretary at a government hospital, was informed that his son Aasif Sultan had been granted bail by a special court that tried cases handled by the National Investigation Agency (NIA).
“I couldn't believe it,” Sayeed told Article 14. “I was eager to hug my son.” The first thing Sayeed did was to call his daughter-in-law, Sabeena, Sultan’s wife, and tell that her husband would finally be home after more than three years.
The government of Jammu and Kashmir (J&K) had other plans.
As soon as the Sultan, 34, was released from jail, a battery of police officers from a unit called Counter Intelligence Kashmir (CIK) whisked him away to their headquarters in the Srinagar neighbourhood of Humhama, said his counsel Adil Abdullah Pandit.
“We were shocked because we had not expected that he would be re-arrested again and booked under Public Safety Act (PSA),” said Sayeed.
At a time when the Supreme Court on 11 April 2022 kept in abeyance India’s 152-year-old sedition law for misuse and the incarceration of those wrongly charged, the Public Safety Act (PSA), 1978, of Jammu & Kashmir faces no legal challenge. The PSA is a much-criticised (here, here, here and here) preventive-detention law that allows imprisonment up to two years without formal charge of any person acting in a manner deemed “prejudicial to the security of the State”.
The law allows detention for a minimum of three months, which can be further extended to six months and a year, with the process in some cases repeated all over again—a technique called “revolving-door detentions”—which is how Sultan has been kept in jail.
Over the years, several national and International rights organisations (here and here) have demanded a repeal of the law, using which the Bharatiya Janata Party (BJP) government of Prime Minister Narendra Modi imprisoned pro-Indian politicians, including three former chief ministers—one of whom removed a key judicial check on PSA detentions—for a period of between eight and 14 months when the special constitutional status of J&K, Article 370, was revoked on 5 August 2019.
Serving and retired police officers told Article 14 that the Constitution provided for a law like the PSA, which they argued helped break a “chain of terrorism” by keeping in prison those freed by courts on “technical grounds” or those radicalised in prison and in contact with terrorist sympathisers.
But legal experts said detentions right after a court verdict freeing suspects were unconstitutional and the government’s action in overriding judicial verdicts laid the ground for a breakdown in the rule of law.
Article 14 sought comment from inspector general of police (Kashmir) Vijay Kumar and director general of police (DGP) Dilbag Singh about allegations of “misuse” of the PSA. We will update the copy if either responds.
205 J&K State Laws Scrapped, Not The PSA
Over the years, the J&K govt has used the PSA to detain a variety of Kashmiris, from stone throwers to critics.
That has included human-rights activists, journalists, politicians and lawyers, detained on vague allegations, in most cases not backed by evidence, with phrases and accusations commonly repeated. We found, for instance, the accusation of “likely to pose a serious threat to law and order” used in at least four of five cases we examined.
PSA dossiers include as grounds for detention allegations of crimes that an accused “may” commit; of harbouring “radical ideology since childhood”; that a “court might grant the bail”; allegations of “planning to indulge in anti-national activities”; and “being well educated, can brainwash people easily against Government”.
This reporter also met 10 families whose kin were re-arrested soon after they got released, some arrested months after securing bail and then detained under the PSA, which in the past has been called “a lawless law”.
A police official, speaking on condition of anonymity since he was not authorised to speak to the media, told Article 14 there was a “clear cut direction” from the government that the PSA must be invoked against anyone who gets bail in facing accusations under the Unlawful Activities (Prevention) Act or UAPA, 1967.
Judicial oversight over the PSA has been gradually removed since 2018, and it was one of 166 J&K state laws that the union government retained under the Jammu and Kashmir Re-organisation Act 2019, which officially split the former state into two union territories.
On 28 April 2022, The Print reported that over 500 people were being held under the PSA in J&K, 150 of whom were arrested between March and April 2022 alone.
“Because of the crackdown on people involved in stone-pelting and other acts that are detrimental to the security of the country, many were arrested under PSA in the last two months,” The Print reported, quoting an unidentified source.
It said jails in J&K were “full with prisoners” and the police were “struggling to accommodate more prisoners”. A number of prisoners have been moved outside J&K to make space for new detainees.
Lawyers in Kashmir estimate many more than 150 were detained over March and April 2022.
“There is not a single day when there isn’t a PSA case listed in the (J&K) High Court,” said Advocate Umair Ronga, who represents journalists Fahad Shah and Sajad Gul, both of whom appear to have been detained merely for doing their jobs—reporting both sides of a news story.
The criminalisation of news reporting gained evident momentum, as Article 14 has reported (here, here, here and here), after the union government ended J&K’s statehood and special constitutional status on 5 August 2019 and launched sweeping security crackdowns, curfews and Internet shutdowns.
Detained Without Charge: Journalists Shah & Gul
Sultan was not the first journalist who secured bail through one legal door and was jailed through another. Before him, Fahad Shah, 33, editor of the independent website The Kashmir Walla, was re-arrested four times in 40 days in multiple cases filed against him up to three years before arrest.
The court granted him bail in two cases and with bail expected—according to his lawyer—in a third case, the government on 14 March 2022 detained him under the PSA and moved him to a district jail in north Kashmir's Kupwara, some 80 km away from his home.
Before Shah’s detention, on 16 January 2022 the authorities detained another journalist, Sajad Gul, 26—an internee reporter associated with The Kashmir Walla—under the PSA, 15 hours after a local court granted him bail in a case. Gul has been lodged in Kot Bhalwal Jail in the Jammu region.
The families of both journalists said they had filed appeals and hoped for the best.
“We don’t get to meet Fahad frequently , since he has been in Kupwara jail, faraway from his home in Srinagar,” said Aqib Shah, his brother.
He said the family had filed a petition in the J&K High Court through counsel, seeking to quash the PSA case against his brother. The hearing is on 1 June.
“Let’s hope for the best,” said Aqib Shah.
Javed Ahmed, brother of Sajad Gul told Article 14, their mother felt his absence the most.
“Our mother is missing Sajad very much,” Ahmed said.
He added that even though the court allowed Gul to appear in his third semester Masters of Arts in Convergent Journalism (MACJ) examination on 3 March, he missed his practical examination.
Ahmed said they, too, had petitioned the high court to have his PSA case quashed. The hearing is on 17 May. “We are hopeful for his release,” he said. For many families, such hopes have led nowhere.
3 Years, 8 Months: Aasif Sultan’s Ordeal
Sultan, the journalist, was first arrested on 27 August 2018 by police & paramilitary forces in a night raid on his house, 15 days after a first information report (FIR) was registered in Batamaloo, accusing him of “harboring known militants”.
The FIR came less than two months after Sultan wrote a story on a young militant commander, Burhan Wani, who had infused new life that year into Kashmir’s long-running but fading insurgency.
Sultan was accused of being involved in the 12 August 2018 killing of a police constable, Parvaiz Ahmad, by suspected militants who fired on a police unit in Srinagar’s Batamaloo during a search operation. The police said the militants were hiding in a house and fled from the area after “indiscriminately” firing at police and other security forces.
Sultan was formally arrested on 31 August 2018 and accused of criminal acts under 11 sections of three laws.
Charges were framed under the Unlawful Activities (Prevention) Act 1967, under section 16 (punishment for terrorist act), 18 ( conspiracy) 19 (voluntarily harbours or conceals terrorists) , 20 (being member of terrorist gang or organisation), 38 (being member of a terrorist organisation), 39 (support given to a terrorist organisation) and section 302 (Culpable homicide) /307 (attempt to murder) ,326 (voluntarily causing grievous hurt by dangerous weapons or means);120B/34 (criminal conspiracy) of Jammu and Kashmir State Ranbir Penal Code (RPC), now the Indian Penal Code (IPC) 1870; and section 7/27 (acquisition or possession, or of manufacture or sale, of prohibited arms) of the Arms Act 1959.
On 7 February 2019, the J&K police filed a chargesheet against 10 accused, including Sultan, for allegedly giving shelter to militants who killed the police constable. The police listed over 50 witnesses in the chargesheet, 39 of them policemen.
The police alleged that Sultan—one of those accused—was working for the terrorist outfit Hizbul Mujahideen and "Hizb letter-pads were recovered from his house during the course of the investigation".
All charges were denied by his family, and during a court trial, the prosecution failed to establish the link between the co-accused and Sultan.
On 6 April 2022, a day after he got bail, Sultan was moved to the
Batamaloo police station, where he was detained “illegally” for four
days, his lawyer alleged, before being booked under the PSA on 10 April
and moved to Kot Bhalwal Jail in Jammu—some 300 km southwest of his home
On 29 April, Sultan was transferred from Kot Bhalwal Jail to Ambedkar Nagar central jail in Agra, Uttar Pradesh. The police quoted the same FIR as one of the grounds of detention under PSA as the one that the court examined and granted Sultan bail.
While issuing the bail order, the court said “prosecution who were cited (sic) as witness to the occurrence, disclosure statements, have not stated anything incriminating against the accused person (Sultan) which could have connected him herein with the commission of alleged crime”.
Like the original FIR, which the court found to be without evidence, the PSA dossier, too, accused Sultan of providing “logistics support and other facilities to the terrorists”.
“However, you have been enlarged on bail in the said case,” said the PSA dossier. “SSP (senior superintendent of police) Srinagar has further reported that there are technical inputs and information received from reliable sources, that you are planning to again indulge in illegal/anti-national activities and may plan some major terror act which will be threat to the security of UT of J&K.”
‘Radical Ideology Right From Childhood’
“[You] may plan some major terror act.”
“Over Ground Worker [OGW] of banned Ansar Ghazwat-Ul-Hind.”
“Aiding the new self styled terrorist outfit namely TRF.”
These are among the several accusations in the PSA dossier against Sultan, accusing him of disseminating “anti-Indian sentiments” through his stories, “advocating the idea of separatism through his articles” and having “radical ideology right from childhood”.
There is some similar language used in the PSA dossiers against Sultan, Shah, The Kashmir Walla editor, and Gul, the intern, all of whom are accused of promoting or justifying separatism: “less reporting about the welfare of Jammu and Kashmir”; and “your stories mostly highlight the allegations of Kashmir conflict and Indian state highhandedness”.
Sultan’s dossier continued: “…and being prominent media personnel by profession, you have under the guise of said profession always been found advocating the idea of separatism through articles, thus clearly trying to advance your own radical ideology”.
"Your stories mostly highlight the allegations of Kashmir conflict and Indian state highhandedness,” the dossier reads. “Each heading of your story highlights the propaganda content you seek to spread.”
The dossier said that he [Sultan] came in contact with cadres of Ansar Ghazwat-Ul-Hind (AGHU), a militant outfit, who “motivated” him to work for the outfit as what the government calls an “over ground worker” or OGW, someone who provides logistic support to militants.
The dossier further says that “off late” Sultan has been found to be aiding the new self-styled “terrorist outfit namely TRF and JeM [Jaish-e-Mohammad]”.
Pandit, Sultan’s lawyer, told Article 14 that the accusations against Sultan were “bizarre”, meant only to prolong his detention.
“Initially, he was accused of being an associate of Hizbul Mujahideen and now after bail he is being accused of being affiliated with AGHU and TRF,” said Pandit. “How is that possible when he was behind bars?”
Key Police Witness Denied Knowing Sultan
The J&K police said that in August 2018, the raid on Sultan was conducted primarily on disclosures of a co-accused in the case, Shazia Yaqoob, who had been arrested days before Sultan, Scroll reported on 9 June 2021. None of the other 15 prosecution witnesses named him.
The police chargesheet filed in court against Sultan said the co-accused had met him and other associates of the militant group several times in different places in Srinagar.
“But when Sultan was presented before the co-accused for the purpose of photo identification, Yaqoob denied knowing him, stating that she had seen him for the first time in court when all the accused were brought for trial,” Scroll reported.
“This was the turning point of the case,” said lawyer Pandit. “The court took notice of it.”
Pandit noted that the court observed that none of the prosecution witness had deposed before that Sultan had conspired with terrorists to carry out any terrorist attacks in Srinagar.
“The court accepted my argument that there is no prime facia evidence that Sultan was involved in the murder of the policemen,” Pandit said. “Since they failed to prove the charges, PSA was invoked to prolong the detention.”
In a 27 August 2018 statement that the prosecution submitted, Yaqoob claimed to have handed over a Hizbul Mujahideen letterhead to Sultan. But in a photo identification less than a week later, she could not recognise him, the court said.
Pandit said he knew that his client would be booked under the PSA.
“I was expecting it because I know they want to prolong his detention,” Pandit said, contending that the article Sultan wrote for his magazine was a prime reason that the government did want him to be freed.
Motivated Stories Glorify Terrorists In Subtle Ways: SSP
Pandit’s contention that the government arrested Sultan because of what he wrote was confirmed by the senior superintendent of police (SSP) Srinagar, who asked that his name not be used. He told Article 14 that Sultan’s writings were “inciting and glorifying militancy in a subtle manner”.
“Many gullible youths join militancy reading such motivated stories that glorify terrorists in a subtle way,” the SSP said. “This has been proved in many accused examinations (sic) wherein the accused had cited such reporting as one of the reasons of motivation to join militancy as active terrorist or as OGW.”
Sultan quoted Wani’s sympathisers—or OGWs in police parlance—who explained how the militant commander used to operate in the Kashmir Valley. Soon after the story was published, the editor started getting calls from the J&K police, accusing the magazine of “eulogising terrorists”.
Over four years after the story’s publication, the J&K police quoted the article on Wani as one of the several reasons for his detention under the PSA.
“You have been found guilty of misguiding common masses (sic) by circulating fake news against the Government and its policies,” the dossier reads.
Justifying the use of the PSA on Sultan, the SSP Srinagar said that the journalist's activities inside jail were found to be "adverse" and the police believed he might get involved in " subversive activities" if freed.
“Under the Indian judicial system jail is a place for reformation of accused and not for retribution and definitely not for radicalization but it was also found that Sultan rather than being reformed, was in touch with anti-national elements,” said the SSP.
The fact that Sultan was detained under the PSA despite the police case collapsing in court is one reason why the law has been widely criticised.
The PSA As ‘Revolving-Door Detention’
A report by Amnesty International, a global advocacy group, in 2011 described the PSA as a “lawless law”, documenting how it was being misused to detain people without trial, “circumventing” criminal justice to undermine accountability and transparency.
The J&K government was using PSA detentions, said Amnesty, as a “revolving door”: a detainee released by the court is immediately detained under the PSA, the detention renewed periodically, so an accused stays in jail. “It is done to keep people the authorities cannot or would not convict through proper legal channels locked up and out of circulation,” said the Amnesty report.
Amnesty International India, in a June 2019 report, documented 71 cases of “revolving-door detentions”, where authorities had either issued a new detention order or implicated a detainee in a fresh FIR to ensure that they remained in confinement.
“Amnesty International India examined several government and legal documents of the detainees in its report to demonstrate a pattern of abuse by J&K authorities,” said former Amnesty International India head Aakar Patel, who ran Amnesty India when the report was released.
“This included detaining children, passing PSA orders without due diligence and on vague and general grounds, ignoring the limited safeguards under the Act, subjecting individuals to ‘revolving-door detentions’, and using the PSA to prevent release on bail and undermine the criminal justice system,” said Patel.
Former J&K DGP S P Vaid argued that an accused could not be detained on the same charges after being granted bail by a court.
“It is written in the Act that you can’t detain a person again on the same ground,” Vaid told Article 14. “The same FIR can’t be quoted in the next PSA.”
Yet, that is what happened in Sultan's case.
Another example is Peerzada Mohammad Waseem, who spent three years in jail after being detained for the 22 June 2017 lynching of deputy superintendent of police Mohammad Ayub Pandith. Waseem, twice arrested for stone-throwing, was taken into custody 21 months after Pandith’s murder.
On 9 April 2022, when an NIA court granted him bail, noting that he was not implicated in Pandith’s murder by any of the three prosecution witnesses, the police detained Waseem under the PSA, using the same FIR used to arrest him in 2017. Another co-accused who similarly got bail, too, was detained under the PSA.
PSA Helps Break ‘Chain Of Terror’: Police
“There shall be no bar to making of a fresh order of detention against a person on the same facts as an earlier order of detention”, says section 19 of the PSA, when the earlier order of detention “is not legal on account of any technical defect” or where the order “has been revoked by reason of any apprehension, of for avoiding any challenge that such order or its continuance is not legal on account of any technical defect”.
Supreme Court lawyer Vrinda Grover told Article 14 that the trend of re-arresting the people under the PSA shortly after being granted bail by a court proved Amnesty India’s allegation that it was a “lawless law”.
“The PSA accords completely arbitrary, unbridled power to the state to imprison anybody without any charge, and allows the state to remove from the public domain any inconvenient voice,” said Grover, adding that such “arbitrariness” was manifest in recent cases because the PSA operated below the judicial radar, without scrutiny by a court.
Vaid, who was DGP when Burhan Wani was killed in July 2016, said “a number of PSA detentions” were quashed by an advisory committee if they believed that the grounds of detention were not “satisfactory”. The Advisory Board is a non-judicial body that reviews detention orders to determine if there is sufficient cause for detention.
“If the advisory board confirms the PSA then you have the High Court to quash the FIR,” said Vaid.
Patel, the former head of Amnesty India, said the government used the PSA to detain people suspected of criminal offenses against whom they did not have sufficient admissible evidence, or to detain people who should not have been arrested at all, such as human rights defenders including journalists and activists.
The SSP Srinagar argued that PSA has helped police break the “chain of terror”.
“PSA many times helps in disrupting the links of terror network of OGWs and activities,” said the SSP. “PSA is a law that has withstood scrutiny of law and such preventive detention laws come under purview of article 22 (3) of Constitution of India.”
Article 22 (3) allows exceptions to the rights of an arrested person to be given grounds for arrest, allowed to consult a lawyer or be produced before a magistrate within 24 hours: those exceptions are for an “enemy alien” or someone “arrested or detained under any law providing for preventive detention”.
The SSP said such laws were required in “extraordinary situations” in an “entrenched ecosystem of terror”.
In many cases, the SSP said, accused in jail were found to be “inclined toward militant activities”, with many using illegally smuggled mobiles to contact “terrorists and other OGWs outside”.
“It is pretty clear that if such a person gets bail he will definitely get involved in anti-national activities outside the jail also,” said the SSP. “In such cases also, the PSA is invoked.”
Offering an example, the SSP said the accused in the 24 September 2020 murder of advocate Babar Qadri were granted bail and later alleged to be in involved in a grenade attack in Srinagar on 6 March 2022.
Grover, the Supreme Court lawyer, said that by using the PSA orders on the same grounds for which an accused has been granted bail by the court, the government was effectively deploying the PSA to overwrite a judicial verdict, which, she added, was "absolutely unconstitutional".
"Once a judicial order has directed that a person be released from detention and his personal liberty restored, then if the executive resorts to the PSA to overturn the judicial decision, it signals the breakdown of the rule of law,” said Grover. “It gravely undermines the constitutional scheme of separation of powers where the judiciary is the only check against abuse of power by the State.”
How Legal Oversight Was Removed
A recent high court order refused to interfere in PSA detentions, judicial scrutiny over which has been gradually dismantled.
A court of law, said the High Court of Jammu, Kashmir and Ladakh on 10 February 2020, “is not a proper forum to scrutinise the merits of administrative decision to detain a person”. The evaluation of such detention, said the High Court, “lies within the competence of the (PSA) Advisory Board”.
The chief justice of the J&K High Court was once part of a panel to appoint the chairperson and other members of the PSA advisory board. In May 2018, the government of former chief minister Mehbooba Mufti—who herself was detained under the PSA between 06 February 2020 and 13 October 2020—cleared an amendment that excluded the judiciary and vested powers to select the chairman and members of the board to a three-member panel of bureaucrats led by the chief secretary.
The process of a PSA detention begins with the police preparing a dossier that must be signed by a district magistrate.
Once a person is booked under PSA, the government must refer the case to the PSA advisory board within four weeks of the detention order, citing the grounds on which the detention has been made. The Board is supposed to review PSA detention orders and confirm or reject them within six weeks.
The PSA advisory board confirmed 99.4% of PSA detentions forwarded by the government, according to a right-to-information query filed in 2018 by two law students of Kashmir University and disseminated by the Commonwealth Human Rights Initiative (CHRI), a nonprofit whose permission to receive foreign funds the union government cancelled in April 2022.
“You can’t curtail the liberty of a person on the basis of a dossier provided by the SP (superintendent of police,” said Grover, the Supreme Court lawyer. “The administration has to apply its mind and see whether the activities of the accused violate the law of the land or not.”
That application of mind while signing the dossier is almost never evident, said advocate Ronga.
“The police are doing exactly what they should do when they recommend somebody’s case for [detention under the] PSA,” said Ronga. “It's the job of the administration to look into [such detentions].”
In July 2018, the administration of J&K Governor N N Vohra (Mufti’s government was dismissed by the union government in June) made another amendment to the PSA Act, deleting a provision that barred authorities from lodging J&K residents in outside state jails.
Thousands of prisoners have been moved to jails outside Kashmir, restricting legal aid because lawyers in Kashmir cannot easily visit their clients, said many lawyers.
“By lodging the detenues outside, the administration has made a law that is preventive, punitive,” said Mir Urfi, a criminal lawyer handling PSA cases for years.
On 31 March 2022, a 40-year-old tailor called Javid Ahmad Mir of south Kashmir’s Pulwama district was summoned to the police station. His wife, Shaista, thought that it was “a normal summons”, so she didn't worry.
“My husband would get usual summons from the police, especially on special occasions, like the Republic Day or if any VIP was visiting,” said Shaista. “So, I thought he would soon be released as he always was.”
This time, Mir was not released and kept in the police station for two days, his wife said. “When we went to the police station to check him, he was in deep shock,” said Shaista, “The police informed us that he would be booked under the PSA.”
Mir was first detained in January 2019 for allegedly providing logistical support to two militants killed in a firefight that month in the house of a man named Farooq Ahmad Gujri. Mir’s family denies the charges.
He faced charges under sections 13 (advocates, abets, advises or incites the commission of, any unlawful activity) 18 (conspires or facilitates the commission of a terrorist) 19 (voluntarily harbours a terrorist ) 20 (being member of terrorist gang or organisation )38(Being member of a terrorist organisation) of the UAPA; 307(Attempt to murder) 212 (Harbouring offender )122—B (Collecting arms, etc., with intention of waging war against the Government of India) of the RPC; and sections 7/27 of the Arms Act (acquisition or possession, or of manufacture or sale, of prohibited arms) and 3/4 ( Attempt to cause explosion or keeping explosive) of The Explosive Substances Act, 1908.
The police said Mir managed the stay of the two militants in Gojri’s house, introducing them to locals as tailors; later, they said, 30 detonators were recovered from Mir’s shop.
Mir pleaded not guilty to the charges, and the court directed prosecution to lead evidence. Nine of 29 witnesses were examined when bail was granted, with the court noting that none of them implicated Mir.
“Though the aforesaid witnesses have stated that the occurrence has taken place but (sic) none of the witnesses has connected the accused applicants herein with the commission of offense,” said the bail order issued on 17 November 2021 by a special designated NIA court in Srinagar.
Mir had already spent 33 months in jail.
However, after 134 days of freedom, Mir was again called to the police station on 31 March 2022 and booked under the PSA but not arrested. Mir’s PSA dossier was prepared on 8 August 2019 and was executed only in 2022, 31 months later, said his lawyer Urfi.
The PSA dossier, a copy of which is with Article 14 says Mir was not able to support his family, when he was approached by the Jaish-e Mohammad militant group.
“The subject got rapidly motivated, pushed further by his financial condition started working for them as an Over Ground Worker and within a short span has became a hardcore member thus harbouring, aiding and abetting terrorism in Kashmir valley,” alleges the PSA dossier.
The PSA dossier says a court might grant him bail but the police were apprehensive that he would again “indulge in similar anti national activities, which are prejudicial to the security of the state”.
“In order to stop the subject from indulging in activities prejudicial to maintenance of security of the state, his detention under the provisions of Public Safety Act at this stage has become imperative,” says the PSA order.
“This is the biggest misuse of PSA,” said Urfi, “When you frame a dossier of a person in one year and execute it after three years just because he got bail.”
(Auqib Javeed is an independent journalist.)