New Delhi: The Supreme Court Monday asked the Narendra Modi government to consider an early release for Mia Abdul Qayoom, president of the Jammu and Kashmir High Court Bar Association, before his detention period expires on 6 August if he agrees to not visit Kashmir or issue any statement there till 7 August.
Qayoom was detained under the Public Safety Act (PSA) on the intervening night of 4 and 5 August last year, ahead of the Modi government’s decision to scrap Article 370.
A Supreme Court bench, led by Justice Sanjay Kishan Kaul, told Solicitor General Tushar Mehta, “We are trying to work out a workable arrangement. The government may have some apprehensions to release him due to the approaching date. Are you willing to release him if he doesn’t go there (Kashmir) till the seventh, agrees to stay in Delhi and not release any statements?”
Mehta agreed to come back with a response on 29 July.
Qayoom stood before the apex court against J&K High Court’s suggestion in May that said he can make a representation before the government for his release assuring that he has shunned his “secessionist ideology“.
The bar council chief asserted his right to maintain a political ideology and refused to accept the high court’s suggestion.
On Monday, Mehta informed the bench that the government will not extend Qayoom’s detention beyond 6 August.
“According to me, his detention cannot be extended. Prima facie, there is no power. But, if the government has been considerate to say we are not extending, then its apprehension can be served if he undertakes to stay in Delhi,” noted Justice Kaul.
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‘Qayoom isn’t a criminal’
During the hearing, the Supreme Court bench initially described the central government’s decision to not extend Qayoom’s detention as a “fair arrangement”.
But senior advocate Dushyant Dave, on behalf of Qayoom, said the government did not oblige the bar chief.
“The law is on my side. There is no evidence to support this detention. They have not supplied me with any material to justify it,” Dave argued.
He also insisted that the court grant Qayoom bail immediately and not wait till 6 August for his release. “Give him bail till then. He is not a criminal. He is not involved in any anti-national activity.”
To this, Justice Kaul noted that though the government has “shown grace”, it was not to an extent which the petitioner wants.
“But that does not mean my liberty should be taken away,” argued Dave, in response to the judge’s comment.
Dave also said the court should test the validity of Qayoom’s detention order to avoid repetition of a similar action by the government in future. “What is the guarantee they won’t invoke it again.”
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‘Qayoom has a secessionist approach’
A vocal critic of the central government and its policies, Qayoom was detained under the PSA in 2010 too.
He had also led the Kashmir bar association’s protest against the use of pellet guns by security personnel at locals who had come out on the Valley’s streets in the aftermath of Hizbul Mujahideen commander Burhan Wani’s encounter in 2016.
Qayoom had also argued for a petition filed by the Kashmir bar association in the Supreme Court on the pellet gun issue.
Justice Kaul said he was aware of the “past events” in which the Kashmir bar association has been involved. The judge even pointed out that Qayoom had declined to act in accordance with the high court’s advice, of giving an assurance that he would shun his “secessionist ideology”.
“You should have been happy. Our perspective was we did not want it to be an unending effort for him,” Justice Kaul told Dave and asked Mehta to consider Qayoom’s early release.
To this, Dave said he will make sure that Qayoom does not issue any statement.
Mehta, however, said Qayoom had a secessionist approach. Objecting to it, Dave said, “You have not charged him with that. He is not a secessionist.”
Justice Kaul intervened at this point and said Qayoom subscribed to a political ideology and there was nothing wrong with. But Mehta contended, “Let him go to Pakistan and say that Pakistan must give PoK (Pakistan Occupied Kashmir) to India.”
When the judge said that people mellow down with age, Mehta noted, “We have aged people with a secessionist approach here.”
‘Qayoom’s son-in-law is a judge now’
Justice Kaul sought to strike a balanced approach, informing Dave that Qayoom’s son-in-law, Javed Iqbal Wani, was recently appointed as a judge of the J&K High Court.
“He is an excellent lawyer. His name was recommended. The collegium cleared and so did the government. Now, he is a sitting judge of the high court,” Justice Kaul said.
The judge then told Mehta, “I always believe that if a person is committed to an ideology, there is nothing wrong with it. If his son-in-law can be appointed as a judge, then in that context consider releasing him, provided he undertakes not to make any statement or visit Kashmir. Dave will ensure he will not issue statements.”
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