J&K High Court Has Quashed 4 Detention Orders Against This Kashmiri Lawyer, But The Police Have Arrested Him Again

05 Jul 2024 11 min read  Share

The Jammu and Kashmir High Court has quashed four detention orders against Kashmiri lawyer Zahid Ali since 2019, citing procedural lapses and lack of evidence and imposing a Rs 500,000 fine on the government of J&K for “malafide and illegal” detention made in contravention of its judgements releasing him again and again. Yet, the J&K police have arrested him again in a five-year-old prison-riot case. The 67-year-old has spent 1,160 in various police stations and jails of the union territory since February 2019, the latest in a series of cases where once a court grants bail, the police arrest the accused in a different case or take them into preventive detention to keep them behind bars.

Zahid Ali, a 67-year-old Kashmiri lawyer, was rearrested the same day he reached home after 20 months in jail. The J&K High Court has quashed four preventive detention orders against him.

Srinagar: After spending 20 months in jail in preventive detention under Jammu and Kashmir’s Public Safety Act (PSA), Zahid Ali, a 67-year-old lawyer and the former spokesperson of the banned Jamaat-e-Islami, was released from Kathua district jail in Jammu on 2 May 2024. 

Justice Rahul Bharti of the J&K High Court, in his order pronounced on 3 April 2024,  declared his detention illegal and, in a first-ever, ordered the state to pay compensation of five lakh rupees. The PSA allows a detention of up to two years without a trial. 

On 2 April, the same judge ordered the state to pay compensation of Rs 2 lakh to Aftab Hussain, a 22-year-old student, after finding his detention under the PSA to be illegal and unconstitutional. 

The detention order against Ali, issued by the district magistrate of Pulwama in south Kashmir on 14 September 2022, said that Ali was a threat to state security, organising “anti-national rallies” to advance cessation of J&K from India and merger with Pakistan, and working for the restoration of J&K’s autonomy, revoked on 5 August 2019, three months after Prime Minister Narendra Modi led the Bharatiya Janata Party (BJP) to its second consecutive victory in May 2019. 

The judge noted that the district magistrate seemed unaware that three previous preventive detention orders against the petitioner were quashed.

Ali’s release was similar to cases of at least three Kashmiri journalists who were rearrested despite courts dismissing cases or detention orders against them (see Article 14’s reporting here, here and here). This technique has now spread beyond J&K and was most recently used against Delhi chief minister Arvind Kejriwal.

Kejriwal was arrested by the Central Bureau of Investigation while in jail on 26 June 2024, a week after a Delhi court had released him on bail in the liquor policy case on 20 June. The Delhi High Court put his bail on hold on 25 June. Kejriwal spent 83 days in prison following his arrest by the Enforcement Directorate on 21 March.  

Citing a series of procedural lapses and a lack of fresh evidence, Justice Rahul Bharti said that the issuance of this detention order, the fourth in a row, appeared to be merely a procedural formality, suggesting that the curtailment of the petitioner’s personal liberty was being executed as a matter of routine paperwork, rather than based on substantial new evidence.

The order said Ali  “has been made to suffer the 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 (February) 2019 to March 2024,” Justice Rahul Bharti said in his order.

"Read between and behind the lines the dossier and the grounds of detention, the SSP Pulwama and the respondent No.2-District Magistrate Pulwama are literally meaning to debunk the three judgments of this court." 

The judge concluded that the repeated detentions without new evidence or incidents demonstrated a "malice in law if not malice in fact" by the district magistrate, senior superintendent of police (SSP), Pulwama and government of J&K. 

“This court cannot resist but to hold that the preventive detention of the petitioner is mala fide and illegal, ab origine and ab intra,” said Justice Bharti.

‘It Feels Like A Nightmare All Over Again’

Ali’s long-awaited return to Nehama, his village in Pulwama, was delayed by pressing health issues. Instead of returning to his family, Ali went to Jammu city to seek medical attention for a severe eye condition that had worsened during his incarceration. 

While his family waited anxiously to see him, the police started calling them and demanding that Ali present himself at the Rainawari police station concerning a case under the Unlawful Activities Prevention Act (UAPA), 1967. 

This case was linked to a prison riot that had occurred inside Srinagar Central Jail on 4 April 2019, where he was lodged in connection with the preventive detention order slapped on him in March 2019. 

Ali’s family said he did not know about having been booked in this case and found out about it only after the fourth PSA order was quashed and he was summoned to the Rainawari police station. 

When Ali finally reached his home on 16 May 2024, he spent a few hours with his family before he was arrested the same day, shattering their hopes for a peaceful homecoming. 

"Those few minutes with Abuji were everything to us. We'd waited so long for his release, and now, after his re-arrest, it feels like a nightmare all over again," said his son, who is pursuing his PhD and requested his name not appear. 

Aasif Sultan, a Kashmiri journalist, was rearrested on 29 February in the same case after being released following 2,010 days of incarceration. He was granted bail on 10 May. 

“...the occurrence took place more than five years ago, and sufficient time of approximately 2 ½ months (72 Days) has been given to the investigating agency for the custodial interrogation of the accused/applicant,” said special judge Sandeep Gandotra.

Ali’s Past

In a Facebook post on 15 June 2017, Ali spoke of his university years, during which he was deeply interested in Islamic literature and teachings, learning Urdu, becoming the president of Jamaat-e-Islami’s student wing at the University of Kashmir, and later becoming the spokesperson of the organisation that was first banned by the Indira Gandhi government when the Emergency was imposed in 1975. 

A second ban, imposed in 1990  when Jagmohan Malhotra was the governor of J&K, continued until 1995. The BJP government imposed the third ban on 28 February 2019 for five years, which was extended on 27 February 2024 for five years.

The BJP government said the “unlawful association” was “continuing its activities against the security, integrity and sovereignty of the nation” and that it was “in close touch with militant outfits and is continuously supporting extremism and militancy in Jammu and Kashmir and elsewhere…”

In 1987, Ali ran for the Assembly election as a candidate for the Muslim United Front from Pampore constituency in Pulwama and lost by 6,803 votes amid allegations that the National Conference (NC) rigged the election that year. 

In four decades of encounters with the police, who said he was someone looking to foment trouble and instability in the conflict-ridden valley, Ali said he was arrested and jailed from 1990 to 1992 and from 1995 to 1996, the worst decade of the militancy. 

Ali was detained in 2016 when the killing of a young militant, Burhan Wani, sparked eight-month-long protests in which 386 people, including 145 civilians, 138 militants and 100 state and central force personnel, were killed, according to the Jammu Kashmir Coalition of Civil Society (JKCCS), a human rights group based in Sringar. 

Ali was arrested on 4 August 2017 for intent to provoke a riot under the Ranbir Penal Code and unlawful activities under the UAPA. 

‘Keep Chained The Petitioner To Jail Bars’

Six days before the Jamaat-e-Islami J&K was banned on 28 February 2019, Ali was taken into preventive custody on the night of 22 February 2019 along with other members of the group. 

On 5 March 2019, while he was incarcerated in the central jail in Srinagar, 

Ali was detained under a PSA order issued by the district magistrate of Ganderbal to prevent him from engaging in activities deemed prejudicial to the state's security. 

The detention was quashed on 11 June 2019 by the J&K High Court due to procedural lapses and lack of evidence. Justice Rashid Ali Dar wrote, “Respondent no. 2- District Magistrate, Ganderbal has failed to apply his mind rather has passed the order on the dictates of the sponsoring agency. The grounds appear to be the template of the police dossier and no independent satisfaction has been recorded by the detaining authority to maintain the detention order while taking all the relevant factors into consideration. The impugned order has been passed in a mechanical manner and without application of mind, as such, liable to be set aside.”

However, Ali was not released, and eight days after the release order, the district magistrate of Pulwama issued a preventive detention order against him on 19 July 2019. 

The J&K High Court quashed the detention on 3 March 2020 for substantive and procedural lapses—same facts and activities as previous detention orders, no fresh activity, the failure to provide copies of FIRs, statements recorded under Section 161 of the Criminal Procedure Code (CrPC), and other related documents. 

"The procedural requirements, which are the only safeguards available to the detenu, have not been followed and complied with by respondents in letter and spirit," Justice Tashi Rabstan said.

Ali was out for three months when a third preventive order in 16 months was issued against him on 29 June 2020, once again by the district magistrate in Pulwama. 

Ali was detained in Kot Bhalwal jail for eight months before the J&K High Court quashed the order against him on 24 February 2021 on the grounds that there was “no new activity attributed to the detenue which would necessitate passing of the order of detention”.

Furthermore, Justice Sanjeev Kumar said that the ban on Jamat-e-Islami, the organisation allegedly linked to the detenue, did not justify new detention, nor did Ali's activities as a lawyer, including pursuing the cases of militants,  cited as grounds for detention. 

The judge wrote, "Performance of professional duties by a lawyer cannot be grounds for detaining a person in preventive custody." 

Ali was out for 18 months before he was detained for a fourth time in September 2022 under a detention order by the DM of Pulwama. 

Ali was jailed in Kathua district jail in Jammu for 20 months before the order was quashed on 3 April 2024 and released on 2 May 2024. 

“The very fact that the dossier and the detention order are of the 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,” Justice Rahul Bharti wrote while imposing a fine of five lakh rupees on the government of J&K and district magistrate of Pulwama.

Ali was arrested in the jail riot case on 16 May 2024 and has spent 49 days in Ranwari police station and the central jail in Srinagar. 

This makes the number of days in jail 1160 since February 2019. 

New Case 

In a statement on 19 May, the police said that Ali was accused in FIR 19/2019 of Rainawari police station under section 13 of the UAPA—unlawful activities—and eleven sections of the RPC, including rioting, endangering human life and personal safety of others, attempt to murder and criminal conspiracy. 

“The said accused was involved in conspiracy and commission of crimes involving arson, rioting, an attempt to jailbreak, raising anti-national slogans and stone pelting in Srinagar Central Jail in 2019,” the police said.

A Facebook post on 17 May said, “Although between these five years (from 2019 to 2024), I have been released by the High Court three times, the police never informed me or my family about my involvement in this particular case, which is totally fake as I had no role at all in the incident. I had not even moved out of my barracks in jail, nor had I had any concerns regarding that incident. I am totally innocent and have been deliberately implicated in the case simply in order to prolong my detention.”

After Ali applied for bail on 17 May 2024 in the Srinagar district court, there have been four hearings and the next one is scheduled for 13 July. 

"The court's judgement on 4 April 2024 made us quite optimistic that there will be no further incarceration of our father. But then finding his name in the FIR shocked us and our father,” said Ali’s son. We have now applied for bail in the court and hope it will be granted soon.”

‘Her Heart Is Ripped Out’

The prolonged detentions and repeated arrests of Ali, a father to four children, have cast a long shadow over his family, leaving them in a perpetual state of anxiety and grief. 

Ali’s son recalled the last days of his grandfather, who passed away while Ali was in custody.

“In his final days, he would constantly inquire about Abu. Unable to comprehend that Abu was in jail, he harboured the belief that Abu was upset with him, which prevented him from seeing him. He wondered what he had done to incur Abu's anger. He deeply longed to see Abu in his last days,” he said. 

“It's devastating to see him suffer like this," Ali’s son said. "His health issues have been aggravated by the lack of consistent medical care."

His father’s imprisonment had taken an enormous toll on our mother's physical and mental health, his son said. 

“Each time Abu is taken away, it's like a piece of her heart is ripped out. She bears the burden of holding our family together, all while enduring the anguish of separation and the relentless pressure from authorities,” he said. 

(The reporter of this story requested anonymity, fearing retaliation from the J&K authorities.)

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