Plea in SC challenging J&K HC Bar Association president Mian Abdul Qayoom’s detention; court issues notice

The Supreme Court on Friday issued notice to the Jammu & Kashmir government in a plea filed by senior advocate and Jammu & Kashmir High Court Bar Association president Mian Abdul Qayoom challenging the High Court's decision to uphold his preventive detention, legal news website BarandBench.com has reported.

A two-judge Vacation Bench of Justices Sanjay Kishan Kaul and BR Gavai took up the plea via video conferencing today and proceeded to issue notice in the same.

The court also allowed interim relief in the form of summer clothing to be provided to Qayoom, who is currently lodged in Delhi's Tihar Jail. The case will be heard next in the first week of July.

On May 29, the Jammu & Kashmir High Court set aside Qayoom's habeas corpus plea and upheld his detention under the controversial Public Safety Act (PSA). The High Court had accepted the argument that the senior lawyer should “declare and establish” by his conduct that he has “shunned his separatist ideology”.

The plea moved through advocate Aakarsh Kamra challenges the 57-page verdict by the High Court Bench of Justices Vinod Chatterjee Koul and Ali Muhammad Magray.

In its order, the High Court had referred to the argument of Advocate General DC Raina that the “ideology nourished and nurtured by the detainee cannot be confined or limited to time to qualify it to be called stale or fresh, unless the person concerned declares and establishes by conduct, and expression that he has shunned the ideology.”

Qayoom was one of the many people who had been detained back in August last year, when Article 370 of the Constitution of India was abrogated and the special status of the erstwhile state of Jammu & Kashmir was revoked.

He was arrested by the Jammu & Kashmir Police on the intervening night of August 4 and 5, hours before the Centre's move.

The plea before the Supreme Court alleges that when Qayoom was detained, he was taken to the prison in Agra without prior intimation, and was kept in solitary confinement during this time.

It is argued in the plea that the High Court's order is unsustainable in law and "is premised on stale, irrelevant, remote, vague, imprecise and deficient grounds of detention." The High Court also concluded that the grounds for detention were "somewhat clumsy", the plea says.

The petition states that the detention order was upheld on the basis of four FIRs registered against Qayoom between 2008 and 2010. In this regard, the petition argues, "These FIRs are stale, irrelevant and have no proximate, pertinent or live link to the present, and are thus superfluous and extraneous to the satisfaction required in law qua the tendency or propensity to act in a manner prejudicial to public order."

Qayoom was neither chargesheeted not arrested in connection with the said FIRs and was placed under detention in relation to the FIR filed in 2010, the plea claims. The detention order under PSA at that time had been subsequently revoked, and as such, these FIRs cannot be used to pass another detention order under PSA after over 9 years have lapsed, it is argued.

Further, the plea also contends that fresh material was placed before the High Court during appellate proceedings and this material was not relied upon by the detaining authority while issuing detention order against Qayoom. Therefore, based on the new material, the detention order ought not be upheld. To this extent, the High Court's order is unsustainable in law, according to the petitioner.

Many of the facts and materials - including police dossier, case diaries, among others - that were relied on by the detaining authority were also not supplied to the petitioner. On these grounds, the detention order and proceedings stand vitiated, the petition adds further.

The old age of Qayoom, his vulnerability to COVID-19, and the rising number of Coronavirus cases have also been listed as grounds for allowing the petition.