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Mian Abdul Qayoom, President of J&K High Court Bar Association prolonged detention comes to an end after Supreme Court Order
Mian Abdul Qayoom, a practising senior Advocate in High court of Jammu & Kashmir for last 40 years and also the President of J&K High Court Bar Association, Srinagar was released from Tihar Jail on 30th July, 2020 after S.C. order his release on a condition that he would be barred from visiting Jammu & Kashmir before August 7, also making any kind of statement to the media.
The detenu, Qayoom was arrested during intervening night of 4th/5th August, 2019, 2 days after which he was shifted to Central Jail, Srinagar. He was detained under Preventive Detention Act and J&K Public Safety Act, 1978 to prevent him from acting in any manner prejudicial to the maintenance of public order.
Petitioner's Submission :
The learned counsel for the petitioner, Qayoom submitted before the court certain grounds:
- That the detenu was not communicated the documents based on which the impugned order of detention was issued, depriving him of making an effective representation before the detaining authority or government.
- That the grounds for detention pertained to the year 2008 and 2010 and the F.I.R was relied upon such documents for which the detenu had already been detained in 2010.
- That he was detained against a false allegation about his activities during the death of Burhana Wani in 2016.
- That the detaining authority has failed to mention whether F.I.R. have been concluded and put to the court for trial or whether investigation has been concluded.
- That it has not been mentioned what activities between 5th & 7th August 2019 have influenced the minds of the detaining authority that Qayoom will resort to violence & instigate public.
- The petitioner submitted that the grounds for detention during intervening 4th/5th August 2019 are vague, indefinite, uncertain, and baseless as also ambiguous & lacks in material particulars & essential details rendering detenu from making an effective representation to appropriate authority.
Respondent's Submission :
The learned counsel for the respondents submiited before the court :
- That the detention of the detenu is legal and is made under the provisions of J&K Public Safety, 1978 and all the Constitutional guarantees were complied by the detaining authority.
- That the detenu was read over and explained the contents of his detention order/warrant.
- That his detention was framed after carefully examining the record furnished by sponsoring agency.
- That the detenu is a well known staunch advocate of secessionist ideology who has propagated in public through his speeches & has also been involved in various criminal cases, and he has been using his platform of J&K Bar Association for instigating public to indulge in activities which would disturb peace & tranquility, sponsoring strikes, & in activities prejudicial to maintenance of public order.
- That it was apprehended and was likelihood, detenu would have acted in a similar manner after Government of India passed law regarding abrogation for Article 370 read with Article 35 A of Constitution of India.
- That the power of preventive detention is a precautionary measure which was taken based on a reasonable prognosis of future behaviour of detenu based on his past activities.
Observation of Court :
After hearing the learned counsels for both the parties, the Court considered personal liberty to be the most precious right guaranteed by the Constitution although Article 22 leaves a scope for enactment of preventive detention laws to take preventive measures & prevent a person form indulging in mischief & converting his ideas into action.
The court cleared out that concept of preventive detention is that detention of a person to prevent him from committing certain injuries activities in future & not to punish him for past acts. Also detenu was furnished with sufficient particulars enabling him to make a representation, but it was failure on his part & decision to not make one.
The court found all the provisions being complied to by the detaining authority & also held that the detention order made on one or more grounds, will not be invalid or inoperative merely because one or some grounds are vague.
Also the report of Advisory Board reveals that all the requirements contemplated under the Act of 1978 have been complied with no error & the detention is in conformity with Article 22 (5) of Constitution of India & that there is a sufficient cause for detention of detenu. Thereby all the grounds put forth by the petitioner were rejected.
The court also mentioned that Supreme Court has held that even one prejudicial act can be treated to be sufficient for framing requisite satisfaction for detaining a person.
Hon'ble Mr. Justice Tashi Rabstan summed up by saying that preventive detention is not punitive but preventive and is resorted with a view to prevent a person from committing activities regarded as prejudicial. The court however did not consider it to be a forum to scrutinise the merits of administrative decision of detention & left the matter with the competence of Advisory Board thereafter dismissed the habeas corpus writ petition on 07-02-2020.
On 28-05-2020 the appeal on behalf of Qayoom was dismissed and the court upheld his detention under the J&K Public Safety Act, 1978 which led to the development of Special Leave Petition before the Apex Court against the impugned order dated 28-05-2020. The Centre on 29-07-2020 agreed to release Qayoom as his detention was near to expiry.
The three - judge bench of Supreme Court Judges comprising of, Hon'ble Mr Justice Sanjay Kishan Kaul, Mr Justice Ajay Rastogi & Mr Justice Aniruddha Bose ordered Mian Abdul Qayoom's release on 30-07-2020.
Case Courtesy : Mian Abdul Qayoom vs State of J&K & ors. WP (Crl) no. 251/2019
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