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Thursday, December 8, 2022

Failed to apply mind: HC raps police, quashes PSA of Jamaat chief Dr Fayaz

Observing that the detaining authority had failed to apply its mind while passing the detention order, the high court in Indian-administered Kashmir has set aside the Public Safety Act imposed on incarcerated Jamaat-e-Islami chief Dr. Abdul Hameed Fayaz.

A two judge bench of the high court set aside the single-bench judgement, and noted that Fayaz was implicated in two FIRs, one of them more than a decade old.

“There is no awareness shown by the detaining authority (police) with regard to the status of the appellant, who is accused in such FIRs,” the bench said.

The Public Safety Act allows detention up to two years without trail and has been used by the Indian police in Kashmir to clamp down on pro-freedom activists and locals.

Reportedly, the bench also noted that the detaining authority had not indicated any reason as to why the substantive laws of Kashmir were not sufficient to deter the appellant from pursuing his activities aimed at destabilising the state and thereby threatening its security.

 “What is envisaged under Section 10A of the J&K Public Safety Act is a situation where detention is ordered on two or more grounds, which are separable and independent of each other. In these circumstances, the Section provides that the order of detention was not to be deemed invalid or inoperative merely because one or some of the grounds is/are vague, non-existent, not relevant, not connected or not proximately connected with such person or unfounded for any other reason whatsoever.”

“The order of detention is clearly vitiated by total non-application of mind by the detaining authority and it should have been held so by the Writ Court,” the high court observed.

Ordering quashing of the PSA against Fayaz, the high court noted: “In view of the above, we find merit in this appeal and the same is, accordingly, accepted,” the court observed.

The Jamaat-e-Islami is a cadre-based soco-religious-political organization, distinct from the Jamaat-e-Islami Hind as its stated position on the Kashmir conflict is that the region is a disputed territory and the issue must be sorted as per UN or through tripartite talks between India and Pakistan and the real representatives Kashmir.

In its direction to the police, the two-judge bench said:  “As a result, the respondents are directed to release the detenue forthwith, if not required in any other case,” the court ordered.

Immediately after the Jamaat was banned by India in February 2019, Fayaz was arrested in a crackdown on the organisations and its cadre. Two FIRs were later filed against him, one charging him under the Public Safety Act.

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