SC asks J&K govt if continued detention of HC bar association president Mian Abdul Qayoom is required

The Supreme Court on Wednesday asked the government of Jammu & Kashmir if the prolonged detention of Jammu & Kashmir High Court Bar Association President Mian Abdul Qayoom was required even as his detention period of one year is about to expire on August 7, legal news website BarandBench.com has reported.

The petition challenging the decision of the Jammu & Kashmir High Court to uphold Qayoom's preventive detention was taken up for hearing by the Bench of Justices Sanjay Kishan Kaul and Indu Malhotra today. The court had earlier sought the J&K government's response on the same.

Solicitor General Tushar Mehta sought a period of ten more days from the Court in order to file the response. Senior Advocate Dushyant Dave, representing Qayoom, questioned if such delays were reasonable in a matter involving the writ of Habeas Corpus.

Dave told the Court that Qayoom is 73 years of age and has been in prison for about a year now. The period of his detention will stand expired on August 7. Despite his old age and susceptibility to the coronavirus, Qayoom continues to be incarcerated and lodged in prison at a time when the COVID-19 pandemic is spreading fast, Dave submitted.

At this juncture, Justice Kaul remarked that Qayoom has been in prison for long enough and "his ideology remains the same". All the earlier FIRs against Qayoom date as far back as 2010, the Court further pointed out. It added,

"These are COVID-19 times and he (Qayoom) is 73 with his period of detention is about to be expired. So please look into this, Solicitor." Supreme Court

Mehta, seeking to argue that Qayoom's ideology is against national interest, sought ten days' time from the Court. The matter, however, will be heard next on July 23, the Court said.

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 by Qayoom before the Supreme Court 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."

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.