Judgement on Mian Abdul Qayoom’s Detention- A Summary
Naeemullah Azeem summarizes the judgement of the division bench of J&K High Court on 28.05.2020 dismissing the Letter Patent Appeal (LPA) filed on behalf of Mian Abdul Qayoom.
The division bench of Justice Ali Mohammad Magrey and Justice Vinod Chatterji Koul of J&K High Court on 28.05.2020 passed an Order dismissing the Letter Patent Appeal (LPA) filed on behalf of Mian Abdul Qayoom. The appeal was filed against the dismissal of the habeas corpus writ petition seeking quashing of the detention order under Jammu and Kashmir Public Safety Act, 1978.
The judgment delivered by the division bench stated that the grounds put forth by the appellant were without merit and the appeal was accordingly dismissed and the detention of the appellant upheld.
The appellant raised several grounds challenging the detention order passed under the Jammu and Kashmir Public Safety Act, 1978. Firstly they stated that the detenue was not supplied all the materials based on which the detaining authority had derived the requisite satisfaction. Secondly, the allegations against the detenue and the FIR put on record were 9 to 11 years old, making them stale and having no proximity to lend suspicion to the fact that the detenue would disturb public order. Further, the detenue was detained in 2010 on the same FIR and allegation as placed on record in this matter, had been dismissed already. It was also argued that the grounds of detention are the same as the police dossier suggesting it suffers from non-application of mind, and that the extension of the detention order did not fall under the provisions of the Act. The appellant argued that the activities that form the allegations against the detenue do not fall under the definition of ‘‘acting in any manner prejudicial to the maintenance of public order”. Lastly, it was argued that the detention order also stands vitiated on the ground that detaining authority did not convey to the detenue that he could make representation to him until the order was approved by the State Government within 12 days of its passing.
The appellants put forth various judgments substantiating each point, all of whom were dismissed by the court stating that the facts of the cases were different to be applied in the given case.
It was argued by the Advocate General on behalf of the detaining authority that “the FIRs and the grounds of detention depict and relate to the secessionist ideology of the detenue, entertained, developed, nourished and nurtured by him over decades, which sub-serves disturbance in public order by the fringe elements in the Society, particularly the immature youth, who are susceptible to excitement. Such ideology nourished and nurtured by the detenue is not and 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. It is this subsistent ideology, specified in the FIRs, nourished and nurtured by the detenue, which is detrimental to the maintenance of public order and which is always pertinent and proximate, for, there is a suspicion that the detenue has the potential to use it any time to disturb the public order.”
Rejecting the argument put forth by the appellants that having any ideology is right guaranteed under the constitution, and its harmless unless it results in the direct violation of a law, the court relied on the various intelligence reports submitted by the respondents forming grounds for establishing a “live link” between the ideology of the detenue and its implications in action. It stated that “we are also of the view that such an ideology alleged against a person, if mentioned in the earlier grounds of detention, because of its nature of subsistence and propensity, would not lose its proximity and, therefore, can be taken into account and used for detaining such person subsequently if the detaining authority is satisfied that such an ideology of the person has the potential to goad or instigate disturbance in public order, in a susceptible given situation, like the one it was at the relevant point of time.”
Rejecting the ground of non-application of mind, the court stated that, “True there is a resemblance in contents of the grounds of detention and the police dossier submitted before the detaining authority, but the detaining authority in the impugned order has clearly stated that after perusal of the records submitted by the Senior Superintendent of Police and after applying his mind carefully and having regard to the requirements of law, he was satisfied that with a view to preventing the detenue from acting in any manner prejudicial to the maintenance of public order, it was necessary to detain him under the J&K PSA.”
Similarly, the argument put forth by the appellant with regards to the non-communication of time was rejected on the ground that the order was passed on the same date that it was approved by the Government. The court also stated that the phrase ‘ín the first instance’ means ‘as the first thing in a series of actions’; meaning thereby, the Government had reserved to itself the power to pass a series of such orders under Section 18(1)(a) to make the total period of detention twelve months, if it so desired. It also stated that the Government is not required to place any fresh matter on record or provide any fresh subjective satisfaction. Hence the court dismissed the argument put forth by the appellant that the extension was not covered under law and that the limitation of Section 18(1)(a) as being applicable to “foreigners” did not hold ground.
It was stated by the court that “it is clearly observable that most of them are somewhat clumsy, but the basic fact remains that the detaining authority is shown to have assumed his satisfaction on number of grounds”. It refused to provide any relief on the prayer regarding the deteriorating health of the detenue stating that the matter was already decided.
Naeemullah Azeem is a Kashmiri lawyer based in New Delhi.
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