Srinagar: J&K High Court on Thursday dismissed an appeal against 7 February order by its single bench, rejecting a plea seeking quashing of the detention order under PSA against advocate Mian Abdul Qayoom, President of the Kashmir High Court Bar Association.
Qayoom was detained on 5 August last year—the day government of India announced the abrogation of Article 370 and bifurcation of J&K. The 76-year-old lawyer was 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.
In a 57-page judgment, a division of Justices Ali Mohammad Magrey and Vinod Chatterji Koul found the appeal without merit and accordingly upheld his detention under Public Safety Act.
However, while disposing of an application by Qayoom’s wife, seeking her husband’s release on the health grounds, the court left it open from Qayoom to decide whether he would wish to “take advantage” of the stand taken by Advocate General D C Raina, essentially calling the lawyer to shun his ideology.
“As mentioned in para 37 of this judgment, while addressing his arguments on the ideology nourished and nurtured by the detenue (Qayoom), the Advocate General submitted that such 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 court noted.
“In light of the above legally rightful and sound argument taken by the Advocate General, we leave it to the detenue(Qayoom) to decide whether he would wish to take advantage of the stand of the Advocate General and make a representation to the concerned authorities to abide by it.”
Simultaneously, the court left it open to the discretion of the Government and of the concerned or competent authority(ies) to take a decision in terms of the relevant provision(s) of the JK PSA on any such representation, if made, by Qayoom. “It is made clear that an adverse order on any such application, if made, shall not entail any legal proceedings, whatsoever,” the court added.
The application was actually referred to the court by a PIL Bench headed by Chief Justice last month.
“Bearing in mind the judicial hierarchy, its judicial decorum and judicial discipline, we think that there is some magnitude of judicial sanctity attached to such reference; otherwise nothing would stop that Bench, headed by lord Chief Justice, to dismiss the same,” the court said, adding, “At the same time, this Court, having dismissed the LPA, and even otherwise, is conscious that in these proceedings it cannot make any direction of the nature sought for by the appellant- petitioner. However, the Court would not be debarred in making some legally permissible order in this application on the admitted facts of this case.”
Pertinently, the Advocate General, the highest law officer of the J&K, was responding to the arguments by senior advocate Z. A. Shah on behalf of Qayoom that among others the FIRs and the allegations contained therein are stale being 9 to 11 years old and have no proximity to lend a suspicion to the detaining authority that the detainee may disturb public order. He submitted that since Qayoom was detained in 2010 on the very same FIRs and allegations contained therein, he could not have been detained anew on the very same allegations and material and on the basis of his past conduct.
The Advocate General submitted that the FIRs and the grounds of detention depict and relate to the secessionist ideology of Qayoom, “entertained, developed, nourished and nurtured by him over decades, which subserves disturbance in public order by the fringe elements in the Society, particularly the immature youth, who are susceptible to excitements.”
“….It is this subsistent ideology, specified in the FIRs, nourished and nurtured by (Qayoom), which is detrimental to the maintenance of public order and which is always pertinent and proximate, for, there is a suspicion that (Qayoom) has the potential to use it any time to disturb the public order.” After considering the matter, the court said that an ideology “of nature reflected in the FIRs and alleged against (Qayoom) is like a live volcano.”
“The ideology has always an inclination, a natural tendency to behave in a particular way; It is often associated with an intense, natural inclination and preference of the person to behave in the way his ideology drives him to achieve his latent and expressed objectives and when he happens to head or leading a group, as the allegations contained in the FIRs suggest, his single point agenda remains that his ideology is imbued in all those whom he leads,” the court said.
