Qayoom's plea against detention: Supreme Court asks J&K to respond

File Pic Main Qayoom

The Supreme Court on Friday issued notice to J&K government to respond to a plea challenging detention of Kashmir High Court Bar Association President Mian Abdul Qayoom.

Qayoom was booked under Public Safety Act on August 8 last year following the abrogation of Article 370 and was eventually shifted to Central Jail Tihar from Central Jail Agra.

Hearing a Special Leave Petition (SLP) against the order of J&K High Court upholding Qayoom’s detention on May 28, a bench of Justice Sanjay Kishan Kaul and Justice B R Gavai asked J&K government to file reply to the SLP by the reopening of the Court in July.

“Issue notice returnable in the reopening second week of July 2020,” SC said.

The direction came after the court heard Senior Advocate Dushyant Dave and Advocate Vrinda Grover on behalf of Qayoom.

In response to the submission by Advocate Dave that Qayoom was possessed of winter clothing when he was brought to Tihar Jail and he would now require some summer clothing, the Court in its interim direction asked the Jail authorities to ensure appropriate clothing along with daily essentials to him.

In its judgment on Qayoom’s appeal against a single bench order, a division bench of the J&K High Court while upholding detention of Qayoom had left it to him to decide if he wanted to take advantage of the government’s stand asking him to shun his ideology for his release.

“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,” the court had said.

In his SLP before the SC, Qayoom has challenged the High Court judgment.

“The judgment, recognizing the pitfalls inherent in the sole ground provided by the four stale and irrelevant FIRs, deploys the perceived ideology of the petitioner to try and establish proximity, pertinence and relevance to the FIRs to justify the detention order,” he says.

The Bar president pleads that in doing so the “High Court is not only supplementing the material upon which the satisfaction of the Detaining Authority was based, which is impermissible in law, but also embarking on constitutionally barred exercise of sanctioning State induced thought policing, which violates the right to privacy and dignity of the petitioner.”

He contends that the “tenets of the Indian Constitution bar the State from acting as a thought police and endows a person with the right to privacy as a facet of the right to life and liberty, recognized by the judgment of nine judges of  the SC in case titled Puttaswamy vs Union of India 2017.

He submits that the HC judgment concluded that most of the grounds in the detention order “are somewhat clumsy” which implies that the High Court too found them wanting.”

Pointing out that the High Court makes it abundantly clear that the detention order has been upheld solely on one ground – the four FIRs dating back to 2008 and 2010, the petitioner submits that the “FIRs are stale, irrelevant and have no proximate, pertinent or live link to the present.

Qayoom submits that in these four decade-old FIRs, he was neither arrested, nor any chargesheet ever filed by the police against him.

He submits that he had already been detained in 2010 on the basis of these FIRs under the PSA, and the said detention was subsequently revoked. “Thus, the same FIRs cannot be used to pass another order of detention under the PSA”.

The petitioner said he is with more than 40 years’ standing at the Bar and has served as President of the J&K High Court Bar Association for many terms, including from 2014 till the present day.

Qayoom pleads that he is more than 70 years of age and is suffering from life threatening heart ailments with blockade of artery, uncontrolled blood sugar level and is surviving on a single kidney which is further aggravated by a disease as of Urethra stricture. He said given the co-morbid conditions, he was vulnerable to Covid19.

“Yet, the impugned judgment and order rejects the request for transfer of the petitioner to a jail closer to home in Srinagar.”