New Delhi: Jammu and Kashmir High Court Bar Association president Mian Abdul Qayoom, who has been detained under the Public Safety Act (PSA), can make a representation before the government assuring that he has shunned his “secessionist ideology” for his release, the J&K HC said Thursday.
The bench comprising justices Ali Mohammad Magrey and Vinod Chatterji Koul made the observation while hearing a petition filed by his wife, demanding Qayoom’s release. The court rejected the petition.
Qayoom is currently lodged at Tihar jail. He was detained on the intervening night of 4 and 5 August last year, ahead of the Modi government’s decision to scrap Article 370.
The court also said “secessionist ideology”, which was cited in the FIRs against Qayoom, “is like a live volcano”.
Apart from challenging his detention, Qayoom’s lawyers had also filed an application for his release in the interest of his health amid the Covid pandemic.
The court was informed he suffered from a few diseases and had also undergone surgeries, but the bench said it cannot grant his release.
It, however, referred to a statement made by Advocate General D.C. Raina, during the hearing.
Raina said the FIRs and grounds of detention against Qayoom depicted his secessionist ideology, which he had developed over decades. This, he said, is usually the case, unless a person “declares and establishes by conduct and expression that he has shunned the ideology”.
The court said it is now open to Qayoom to “take advantage of the stand of the learned advocate general and make a representation to the concerned authorities to abide by it”.
It also left it to the authorities to decide on the representation, and clarified that any adverse order from the authorities on this application would not entail any legal proceedings.
Old FIRs can still be ‘relevant’
Qayoom’s wife had last year challenged the detention order passed against him under the PSA by filing a habeas corpus petition. In February, a single-judge bench rejected the petition.
She had challenged the detention order on the ground that it had cited old FIRs against Qayoom, dating back to 2008 and 2010, which had no immediate proximate link to his actions 9 years later.
She had also submitted that Qayoom had been detained in 2010 based on the same FIRs and so he cannot be detained afresh on the same grounds.
Her lawyer, senior advocate Z.A. Shah, also asserted that even if a person had a certain ideology, this ideology must lead to some practical conduct by the detainee and this practical conduct would then result in violation of some law. As an example, he submitted that if a person forges a court order but does not use it, it would not amount to any crime.
The court, however, pointed out he had not been detained just on the basis of old FIRs.
It said an ideology is on a different footing as compared to a criminal act done in the past. The court observed that because of the nature of the ideology, it can be taken into account and used for detaining someone, if the authority is satisfied that “such an ideology of the person has the potential to goad or instigate disturbance in public order, in a susceptible given situation”.
It then asserted that even though the FIRs were old, Qayoom’s past conduct would still be relevant.
Confidential report listed down alleged activities
While Qayoom’s wife had also submitted that he had not been provided with the reports on the grounds of detention, the advocate general pleaded privilege citing Section 13(2) of the PSA, which allows the authority to not disclose facts that it considers against public interest.
These reports were, however, submitted to the court, which said it was “satisfied about the continued propensity of the detenu which must have weighed with the detaining authority to arrive at the satisfaction recorded in the impugned detention order”.
The court said while it cannot quote the reports here, it did list down the dates on which Qayoom carried out these alleged activities.
It also made a reference to some of Qayoom’s alleged objectionable activities, saying: “Taking out processions knowingly that such acts are likely to stoke public disorder, especially so when there are restrictions in position, raising provocative and anti-national slogans of sorts, holding close door meetings within separatist leaders as being president of the Bar etc. are such instances which point to only one thing that the ideology is not an act done by the detenu in the past, but it is his continuous inclination and preference.”