On 28-05-2020, the Divisional Bench comprising of Hon’ble Mr Justice Ali Mohammad Magrey and Hon’ble Mr Justice Vinod Chatterji Koul, via video-conferencing, heard the case of Mian Abdul Qayoom vs. Union Territory of J&K & Ors. The Court rejected his bail plea and upheld his detention.
Facts of the Case
The detaining authority arrested Mian Abdul Qayoom, the former President of Jammu & Kashmir Bar Association at midnight on 4 August 2019. They detained him, in the exercise of their powers, under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. The detention prevents him from acting in any manner prejudicial to the maintenance of public order.
On 07-02-2020, the Writ Court dismissed his Habeas Corpus petition that sought to quash the detention order.
The detainee filed Letters Patent Appeal against the Writ Court’s judgment dated 07-02-2020. In the beginning, the detaining authority detained him at Agra Jail. However, they later shifted him to Delhi’s Tihar Jail once his health deteriorated.
Contentions of the Appellant
The authority did not supply the materials of the basis of detention to the detainee. The FIRs registered were ‘stale’ as they were registered in 2008 and 2009. In 2010, the detainee was detained based on the allegations contained in the FIRs. Thus, he should not be detained again on the very same past allegations. The detaining authority did not inform the detainee about representing against his detention.
The provisions of the J&K Public Safety Act, 1978 does not cover the extension of detention. Thus, the extensions accorded in the detention order are illegal. The definition of the phrase “acting in any manner prejudicial to the maintenance of ‘public order’”does not cover the allegations contained in the FIRs. Further, The appellant’s health condition amid COVID-19 is another reason to release him.
Contentions of the Respondent
The appellant is a staunch advocate of secessionist ideology. His speech showed that he wanted Jammu and Kashmir to secede from India and annex with Pakistan. Violation of laws led to the registration of at least four criminal cases against him.
He even used Jammu and Kashmir High Court Bar Association as a platform to sponsor strikes. Thus, encouraging the general public to indulge in violence. He indulged in the violence of serious nature that claimed lives like in Land Row Agitation of 2008. The Law and Order situation in 2016 in Kashmir saw his unlawful indulgence in violence.
He indulged in unlawful activities, despite being a President of J&K Bar Association. The Advocate General argued that the ideology is not limited to “time” in order to call it as ‘stale’ or ‘fresh’. The concerned person should declare and establish by conduct that he has shunned such ideology.
Court’s Analysis
In this case, the detaining authority has only considered the four FIRs registered against the detainee as the ground of detention. Further, Section 10-A of the J&K Public Safety Act, 1978 states that the grounds of detention are severable. Thus, a single ground of detention is enough to sustain a detention order.
Intelligent reports show various unlawful activities of the detainee even after 2010. Thus, the detainee is not detained on the very same allegations again. Allegations of ideology can be fresh grounds of detention. Also, this is irrespective of the age of those FIRs. Hence, the contention of FIRs going ‘stale’ is irrelevant.
Further, the contention of not giving the detainee opportunity to represent is without merit. The Court perused records of the detaining authority performing the same. The extensions in the period of detention are under Section 18(1) (a) of the J&K Public Safety Act, 1978. Hence, the argument of the extension of detention being illegal is invalid. Moreover, the argument that the detainee did not act in a manner prejudicial to maintenance of public order is invalid.
Held
The bail plea made on grounds of his health condition amid COVID-19 stands rejected. The appellants made no substantial arguments. The Court dismissed the Letters Patent Appeal as it did not find any merit in it. It upheld the detention of the detainee. The Court held that the argument of the Advocate General about shunning an ideology is right.
The Court gave an option of ‘shunning the secessionist ideology’ for the detainee to make representation. Additionally, it leaves it to the concerned authority or Government to take decisions if the detainee makes any such representation. Any such application made will not entail legal proceedings. In view of the same, the Court disposed of the application.
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