SC asks Centre to clarify: Why is J&K bar president Qayoom still in jail, even post detention period?

The Supreme Court today (July 15) asked the Centre to clarify on what basis was it deciding to keep in detention Jammu & Kashmir Bar Association president Mian Abdul Qayoom within Delhi’s Tihar jail, when  his detention as per order has already expired.

The bench, comprising Justices Sanjay Kishan Kaul and Indu Malhotra, was hearing a petition filed by Qayoom against the J&K High Court order that had upheld the order of detention under the J&K Public Safety Act.

Senior Advocate Dushyant Dave, appearing for Qayoom, submitted that the detention order was only for a limited period and (review of) the petition was kept pending for three months, resulting in the ‘illegal’ detention of Qayoom for so long.

Justice Kaul, thereafter, put a pointed question to Solicitor General Tushar Mehta. He said that the detention period has already expired and Qayoom’s ideology remains the same. In this backdrop, and also within the current scenario of the COVID-19 pandemic, was it feasible to keep the matter pending, keeping in mind the fact that Qayoom is 76 years old?

At that the SG Mehta asked for 10 days time. Counsel Dave, however, insisted that the matter be put up on Monday next.

The bench directed the SG to file his reply and posted the matter for next hearing on July 23.

Qayoom was detained on August 5 last year, the day the Centre announced the abrogation of Article 370. He has remained under detention since. He was shifted to a jail in Agra, where his health deteriorated and then was brought to Delhi’s Tihar Jail. 

The Jammu and Kashmir High Court in May had upheld the government’s orders relating to preventive detention of Senior Advocate and J&K HCBA president Mian Abdul Qayoom under the J&K Public Safety Act, 1978. The court had held that he has a tendency of disturbing law and order and thus it would not be appropriate to interfere with impugned order of detention. 

The High Court had cited the order of the Supreme Court in The Secretary to the Government, Public and another vs Nabila and another (2015), where it was stated: “In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.”

Before the High Court, the petitioners had questioned the grounds of Qayoom’s detention, stating that the same was signed by the District Magistrate without application of mind and without going through the grounds of detention. 

It was also submitted on Qayoom’s behalf that the grounds of detention were vague, indefinite, uncertain, and baseless as also ambiguous and lacked in material particulars and essential details, which had rendered the detenue unable to make an effective representation against his detention to appropriate authority.

-India Legal Bureau