Srinagar May 28: The High Court today dismissed an appeal by the Kashmir Bar Association President Mian Abdul Qayoom against an earlier court order that declined his release from a Delhi Jail where he is detained under Public Safety Act (PSA).
Qayoom was detained under the preventive detention law on 5th August 2019 after the government abrogated the autonomous status of Jammu and Kashmir.
In a virtual court hearing Justices A M Magrey and Vinod Chatterji Koul, dismissed the appeal by Qayoom challenging the single bench order of Justice Tashi Rabstan that upheld the detention under PSA.
Justice Rabsatan in his judgment had left the matter to subjective satisfaction of the executive saying “subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court”.
The judge also observed that the courts were “not a proper forum to scrutinize the merits of administrative decision to detain a person”.
The petitioner claimed that he was not supplied the material documents on the basis of which the detaining authority had attained the requisite satisfaction.
He also said “the FIRs relied upon by the detaining authority to form his opinion pertain to the years 2008 and 2010, and that the allegations contained in these FIRs are stale in nature; therefore, the same could not form the basis for detaining the detenue, and that the detention order on that ground is vitiated”.
His lawyers argued “the detenue was previously detained in the year 2010 and the very same FIRs and the allegations made therein were then relied upon for detaining the detenue, but that detention order was subsequently withdrawn”.
The D C Raina the Advocate General of J&K argued that the 76 year old Qayoom has since long emerged as one of the most staunch advocates of secessionist ideology in Kashmir.
“He believes that Jammu and Kashmir is disputed territory and it has to be seceded from Union of Indian.
“The role of subject has remained highly objectionable and he was indicted many times in past for secessionist activities which can be gauged from the fact that at least 04 criminal cases have been registered against him and his other associates for violating various laws whose sanctity they are supposed to uphold in highest esteem,” he pleaded.
He told the court that Qayoom was instigating general public to indulge in the Amarnath Shrine land transfer agitation in 2008 and the one following the killing of militant commander Burhan Wani in 2016.
“The subject for achieving this objective has been misusing platform of Bar Association which is regarded with esteem as per the status given to it in the constitutional system”, Raina said.
He added “there is every likelihood and apprehension that he will instigate general public to resort to violence which would disturb public peace and tranquility in J&K”.
He also said that the detenue has the right to represent to the Ministry of Home for his release which he has already declined to avail.
The High Court disposed of the petition against the detention of Mian Abdul Qayoom under PSA.
The divisional bench observed that the Advocate General has submitted that the “activities attributed to and alleged against the detenue herein, reflected in the FIRs, are not such acts as, if once committed, would be treated as acts done in the past, and finished.”
The Court said that the Advocate General also submitted 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.”
The Court further observed that Advocate General has submitted “the ideology nourished and nurtured by the detainee cannot be confined or limited to time, qualify it to be called stale or fresh, unless of course, the person concerned declares and establishes by conduct and expression that he has shunned the ideology.”
The bench in its order observed that in the light of the argument taken by the Advocate General, “we leave it to the detenue 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, we also leave it to the discretion of the government and the concerned competent authority to take a decision in terms of relevant provisions of JK PSA on any such representation, if made by the detenue.”
It is made clear that an adverse order on any such application, if made, shall not entail any legal proceeding, whatsoever,” the Court observed.
