On August 15, it was reported that Shah Faesal, the Kashmiri bureaucrat who left the Indian Administrative Service to join politics, was being held at the Centaur Hotel in Srinagar, which has been turned into a makeshift detention centre.
Early on August 14, government authorities prevented Faesal from taking a connecting flight from Delhi to Istanbul. He was flown back to Srinagar. Upon arrival in Srinagar, he was detained and later transferred to the hotel.
Faesal is not the first Kashmiri politician to be detained in Srinagar over the past week. Since the Centre revoked Jammu and Kashmir’s special status by nullifying Article 370 and divided the state into two Union Territories, two former chief ministers – Omar Abdullah and Mehbooba Mufti – have been arrested and a third, Farooq Abdullah, is said to be under house arrest.
The order to arrest Mufti, the leader of People’s Democratic Party, also held in a Srinagar guest house, said her activities were likely to cause a “breach of peace”. Hundreds of other political leaders and activists are said to have been detained, although the administration has not given out a formal number.
Faesal’s case, however, raises some particular questions.
A lookout circular
First, it is not clear on what basis he was stopped from travelling out of the country. According to a report in The Hindu, he was told at the Delhi airport that there was a lookout circular against him. The Hindu reports he was questioned about a recent interview to the BBC where he had been critical of the government’s decision.
A report in The Indian Express quoting home ministry sources said there was a “perception of threat to public order due to his activities”, that he was likely to “foment trouble in Valley” from abroad.
A home ministry circular from 2010 cites a Delhi High Court judgment which lays out the grounds and procedure for issuing such circulars:
“Recourse to LOC can be taken by investigating agency in cognizable offences under IPC [Indian Penal Code] or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs [non-bailable warrants] and other coercive measures and there was likelihood of the accused leaving the country to evade trial and arrest.”
Did Faesal meet any of these criteria and which agency issued the lookout circular?
Turned back at Delhi airport
Second, there is some confusion about which agency detained him in Delhi. Some reports say he was detained by immigration authorities and handed over to the Delhi Police. Others say the immigration authorities deny detaining him, while Delhi airport’s deputy commissioner of police claimed they had no information on his arrest.
If Shah was not detained by any authority, how was he prevailed upon to return to Srinagar and who escorted him back?
Preventive detention in Srinagar
Once in Srinagar, the Express and other outlets reported, Faesal was held under the Public Safety Act. A government official later told the Hindu that he was not held under that law but is still in preventive detention.
The Jammu and Kashmir Public Safety Act of 1978 was a preventive detention law used widely in Kashmir. Under its provisions, the government could detain a person to prevent “him from acting in a manner prejudicial” to the “security of the State” or the “maintenance of public order”.
A divisional commissioner or district magistrate could issue an executive order and the authorities could withhold grounds for detention for up to 10 days after a person was held, and even then, could refuse to reveal reasons if it was against “public interest to disclose”. Under these executive orders, persons detained for “maintenance of public order” could be held for three months, though this period could be extended to a year.
In 1982, the Supreme Court, hearing a detention case under the Public Safety Act, said “danger looms large that the normal criminal trials and criminal courts set up for administering justice will be substituted by detention laws often described as lawless law”.
The Public Safety Act was passed by the Jammu and Kashmir Assembly under the state’s Constitution, both of which have ceased to exist. If Faesal is indeed held under the law, is it still valid? If not, which authority issued the preventive detention order, and under which law, to hold Faesal at the Centaur Hotel?
Scroll.in has contacted the Ministry of Home Affairs seeking a clarification on these questions. This piece will be updated if and when a response is received.
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