Jammu: After being slapped with two criminal cases for allegedly circulating government confidential information over WhatsApp and one for allegedly cheating a businessman, Tarun Behl, who owns two newspapers in Jammu, was slapped with a preventive detention order on 5 September 2024.
The order passed under the Public Safety Act (PSA), 1978, which allows detention for up to two years without charge or trial, was passed on the same day Behl received bail in the third case.
Four months later, on 2 January this year, the Jammu and Kashmir High Court quashed the order, calling it “malice-filled” and “illegal.”
Justice Rahul Bharti said, “The petitioner’s ultimate arrest and detention on 06.09.2024 is a pointer to the fact that the petitioner was somehow being eyed upon to be a witch-hunt by the authorities and that is exhibited from the aforesaid sequence."
Behl was arrested in three criminal cases and served one preventive detention order in two months. The preventive detention order was passed on the same day he was granted bail in the third case in September 2024.
Preventive Detention Abuse
This follows a pattern of the Jammu and Kashmir (J&K) police using preventive detention to keep journalists incarcerated even after bail is granted by a trial court or the high court. Article 14 has reported on three such cases (here, here and here).
The law, including preventive detention, has been weaponised to stamp out any critical journalism coming out of the conflict-ridden region since the Bharatiya Janata Party came to power at the centre in May 2014 and then rescinded its autonomy in August 2019.
More than 50 Kashmiri journalists have been “summoned” by the police for questioning, raided, targeted with frivolous legal cases, or jailed since 2019, the Caravan reported in February 2022.
In September 2021, the Wire reported that the Indian government had placed 43 individuals on the no-fly list, of whom 22 were journalists. From 2019 to August 2022, at least five Kashmiri journalists have been stopped from travelling abroad.
According to an Amnesty International press release on 18 September 2024, between 2014 and 2019, 272 habeas corpus petitions were filed in the Jammu and Kashmir High Court, 41 before the Jammu bench and 231 in Srinagar. However, after J&K’s autonomy was rescinded in August 2019, the number of petitions significantly increased, with 2,080 filed from 2019 to 2024. Of these, 289 petitions were filed in Jammu and 1,791 in Srinagar.
Amnesty International said there was a seven-fold increase in cases filed challenging PSA after 2019, with Muslim-dominated Srinagar recording consistently more PSA cases than Hindu-dominated Jammu.
Amnesty International also said the average time taken to dispose of habeas corpus petitions in the Srinagar bench of the high court has inordinately increased since 2019, further enabling arbitrary and prolonged detention. From 269.9 days in the period of 2014–2019 to conclude a petition the average time taken has gone up to 329.2 days from 4 August 2019 – 31 July 2024.
On 30 Jan 2024, Newslaundry reported that in 2015, an RTI response had suggested that 16,329 persons had been detained under the preventive detention law since 1988, and nearly 95% of them were from Kashmir.
According to another response to an RTI application filed in 2023 by the NGO J&K RTI Movement, between August 2019 and July 2023, 1,570 petitions were filed against PSA detention orders, of which the J&K High Court quashed 900.
J&K High Court Quashes Orders
Quashing a preventive detention order against journalist Fahad Shah in April 2023, Justice Wasim Sadiq Nargal said, “A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the ‘maintenance of public order’. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis.”
Quashing the order against journalist Sajad Gul in November 2023, then Chief Justice N Kotiswar Singh and Justice M A Chowdhary said, “Such a tendency on the part of the detaining authority to detain the critics of the policies or commissions/ omissions of the Government machinery, as in the case of the present detenu- a professional media person, in our considered opinion, is an abuse of the preventive law.”
In December 2023, while quashing the preventive detention order against another journalist, Asif Sultan, Justice Vinod Chatterjee Koul said, "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."
In August 2024, Justice Rahul Bharti, while setting aside the detention order of Hamid Mohd, an alleged bovine smuggler, observed, “Preventive detention cannot be resorted to by debunking the ordinary criminal procedure and the trial of cases.'"
‘He Has No Control Over The Police’
In October 2024, after becoming the chief minister of J&K after it was demoted from a state to a union territory on 5 August 2019, Omar Abdullah said that the “government would not interfere in the media’s functioning, saying democracy is incomplete without an independent press”.
“My government won’t interfere with the media. They are free to criticise the government’s shortcomings,” he said.
Anuradha Bhasin, author and executive editor of the Kashmir Times, said there is a difference between making tall claims in the media to gain public attention and addressing ground-level issues.
“The problem with Omar is that he has no control over the police, and claiming that his government would not interfere in the media’s functioning is completely different. It is the police who register cases, and Omar has no control over them.
Bhasin criticised Abdullah for his silence over the crackdown on the media.
Bhasin said Kashmiri journalists were suffering every day, summoned and questioned at police stations with these events never reaching the public domain.
“Omar's government must be aware of this harassment if he is genuinely connected with the people on the ground and should speak out against it,” said Bhasin. “Issuing statements about press freedom while remaining silent about suppression is hypocrisy.”
3 Cases & Prevention Order In 2 Months
On 08 July 2024, Tarun Behl, a journalist and owner of the newspapers Sree Times and Aasman was arrested by the J&K police from Amphalla, Jammu, and booked under the Official Secrets Act, 1923 for allegedly circulating a list of 57 protected persons, including journalists, politicians, and retired police officers, whose security cover was recently withdrawn by the J&K administration.
In July 2024, the Jammu and Kashmir authorities said this was done given the improvement in the overall law and order situation and the reduction of threat perceptions.
Behl was booked under sections 353 (statement conducting to public mischief) and 49 (punishment of abatement) of the Bharatiya Nyaya Sanhita, 2024 (BNS), as well as sections 3 (penalties for spying) and 5 (wrongful communication) of the Official Secrets Act.
Following the case registration at the Channi Himmat police station in Jammu on 7 July 2024, another case was registered against Behl on 8 July 2024 at the Shergari police station in Srinagar, around 250 km away, for the same alleged offence.
Behl was booked under section 198 (public servant disobeying the law, with intent to cause injury to any person), 353 (statement conducing to public mischief) and 49 (punishment of abatement) of the BNS, and sections 3 and 5 of the Official Secrets Act, section 72 (the penalty for breach of confidentiality and privacy) of The Information Technology Act, 2000.
A city magistrate in Srinagar, Sajad ur Rehman Dar, granted bail on 13 August 2024.
Behl had applied for bail in the first case before the court of the principal session judge in Jammu on 9 July 2024. It was rejected on 12 July with the observation that Behl had allegedly destroyed his phone before the police could seize it.
Behl approached the high court and was granted interim bail on 22 July 2024.
Interim bail is the bail granted before final arguments.
A String Of Cases
While granting bail, Justice Rahul Bharati observed the case was now “directed towards the persons within the establishment of the police from where the suspect had sensitive/secret information…”
The judge said that keeping Behl jailed would not serve “any definite investigative purpose…” and would achieve nothing but “condemning an accused as a convict from the very inception of investigation”.
“A good police investigation is supposed to chase the evidence gathering related to a case under investigation and not to chain an accused/suspect,” the judge said.
The final argument for Behl’s bail application was on 7 February 2025.
In addition to the two FIRs for allegedly circulating secret information, a third FIR was registered against Behl on 22 July 2024 following a complaint by one Suresh Gupta, a Jammu-based businessman, who said that Behl had cheated him of Rs 40 lakh.
On 5 September 2024, a Jammu magistrate granted Behl bail. Jammu's district magistrate passed a preventive detention order against him the same day.
The order said that Behl “intentionally circulated secret and confidential information related to the security issues of various dignitaries, including secret official documents in the WhatsApp group for vested interests at the time when elections processes are going on and the government agencies are already facing various challenges in the form of combating anti-national elements who through their illegal designs are creating unrest at different parts of the UT of J&K.”
The other ground was that Behl had close to 140 bank accounts, including 117 in the Jammu and Kashmir Bank, where transactions were “so hefty and dubious” that the police could not rule they were the “proceeds of illegal acts in the form of selling out the secret information pertaining to the security” of J&K. The police also suspected money laundering.
‘Malice Afflicted & Illegal’
While ordering immediate quashing of the detention order on 2 January this year, Justice Rahul Bharti held that “the preventive detention of the petitioner is held to be malice afflicted and illegal…”
On Behl’s bank accounts, the judge said, “as if having such a number of bank accounts by the petitioner was an illegal act in itself…”
The court said that Jammu's district magistrate “yielded his discretion and judgment” while passing the detention order “as if given on asking.”
The court highlighted the magistrate's failure to convey the detenu about the rejection of his representation before the competent authority, the state advisory board under PSA, a board of three persons, including a chairman who has been a high court judge.
The court said, “This adverse outcome was never apprised to the petitioner for the sake of even comfort of his curiosity being a person under detention awaiting a word to know about the fate of his representation against his detention.”
In support of his detention order, the judge said the district magistrate had relied on case law as if the preventive detention was an “adjudicatory decision in nature, begging support of judgments of the Hon’ble Supreme Court of India”.
The court said, “Sr. Superintendent of Police (SSP), Jammu and the District Magistrate, Jammu have literally resorted to dubious exercise of authority and jurisdiction at their respective end to pounce upon the personal liberty of the petitioner by subjecting him to preventive detention.”
(The J&K-based reporters who wrote this story have requested anonymity.)
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