A double bench of J&K High Court on Thursday dismissed the petition filed by Kashmir High Court Bar Association president, Mian Abdul Qayoom in which he had challenged his detention under the Public Safety Act (PSA).
The bench however left it to Mian Qayoom to decide if “he wants to take
advantage of the government’s stand asking him to shun his ideology for his release”.
The double bench comprised Justice Ali Muhammad Magray and Justice Vinod Chatterji Koul.
While opposing Qayoom’s appeal, the Advocate General told the division bench that “the ideology cannot be confined or limited to time to qualify it to be called stale or fresh or proximate, unless, of course, the person concerned declares and establishes by conduct and expression that he has shunned the ideology”.
The bench said in light of the legally rightful and sound argument taken by the AG, they leave it to the detainee (Qayoom) to decide whether he would wish to take advantage of the stand of the AG and make a representation to the concerned authorities to abide by it.
The court, simultaneously, also left it to the government to take a decision “in keeping with the provisions of Public Safety Act on any such representation, if made by Qayoom”. The court however made it clear that that an adverse order on any such application, if made, shall not entail any legal proceedings, whatsoever.
While responding to the points raised by senior advocate Z A Shah against the PSA detention of Qayoom, the AG said there is a distinction between the activities attributed to and alleged against the various detainees involved in the decisions cited at the Bar by the senior counsel and the acts attributed to Qayoom.
In response to AGs submissions, senior advocate Zaffar Shah submitted that “being a secessionist or having a secessionist ideology is a ground relatable to the maintenance of security of the State but such is not the case here as the detainee admittedly was detained for activities prejudicial to the maintenance of public order”.
“Submission made is thus belied by the detention order itself,” he said.
After hearing senior advocate Z A Shah, advocate N A Ronga and Mian Tufail on behalf of Qayoom and AG DC Raina, Sr AAG , B A Dar, AAGs Shah Aamir & Aseem Sawhney on behalf of the J&K government besides ASGI T S Shamsi, the court dismissed the appeal
The court concluded that an ideology of the nature reflected in the FIRs and alleged against Qayoom is like a “live volcano”.
“So far as the ideology attributed in the FIRs is concerned, public disorder is its primary object and surviving factor. Taking out processions
knowingly that such acts are likely to stoke public disorder, especially so when there are restrictions in position, raising provocative and antinational slogans of sorts, holding close door meetings within separatist leaders as being President of the Bar, etc. are such instances which point to only one thing that the ideology is not an act done by the detenue in the past but it is his continuous inclination and preference”.
The court said the FIRs registered against the detenue in the instant case, and of which the detaining authority is reasonably satisfied, can be said to be different from a criminal act or acts done sometime in the past and, therefore, would always continue to be proximate in their impact and consequence and would not attract the judgments cited at the Bar on the point”
“We are also of the view that the ideology alleged against a person, such as the one reflected in the FIRs registered against the detenue in the instant case in 2008 and 2010, irrespective of the age and fate of those FIRs, and reiterated in the fresh grounds of detention, cannot be said to have gone stale by efflux of time”
Qayoom was detained on 5 August last year — the day centre announced the abrogation of Article 370 and bifurcation of J&K.
The 76-year-old lawyer was subsequently booked under PSA on August 7 last year and immediately shifted to a jail in Agra where his health deteriorated. He was brought to New Delhi’s Tihar Jail in February and is lodged there since.
He challenged his PSA detention before J&K High court and a single bench dismissed his plea. Against the single bench order he filed appeal which was dismissed today by the DB.