Srinagar: On Friday, the Jammu and Kashmir (J&K) High Court dismissed a petition challenging the “preventive detention” of J&K High Court Bar Association's president Mian Abdul Qayoom, who is currently in Agra jail.
Calling the grounds of Qayoom’s detention “vague, indefinite, uncertain, and baseless as also ambiguous” the petitioners added that the “lack in material particulars and essential details has rendered the detainee unable to make an effective representation against his detention to appropriate authority.”
The petitioners said the detention was signed on by the District Magistrate “without application of mind and without going through the grounds of detention.”
Quoting the ancient Greek tragedian Sophocles, the court observed, “law can never be enforced unless fear supports them.”
The respondents claimed Qayoom, who held the position of Bar Association President, has, through his speeches and appeals, emerged as a staunch advocate of secessionist ideology propagating in public. They said the detainee has been involved in various criminal cases and has been using his to promote and propagate a secessionist ideology and has been sponsoring strikes.
The respondents accused Qayoom of being actively involved “particularly during agitation of 2008 as also in the agitation at the time of killing of terrorist Burhan Wani in 2016.”
The court observed the essential concept of preventive detention is that “the detention of the person is not to punish him for what he has done but to intercept and prevent him from doing it.”
Justice Tashi Rabastan dismissed the petition saying that it cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction were reasonable or proper or whether in the circumstances the person concerned should have been detained or not.
On August 5, 2019, Qayoom was detained along with scores of politicians, lawyers, activists and businessmen as the government unilaterally abrogated Article 370 of the Indian constitution that guaranteed special status to Jammu and Kashmir and subsequently bifurcated it into two Union Territories.
The court said, “this matter lies within the competency of the advisory board of the home department of Jammu and Kashmir.”
The court also observed the responsibility of the state for maintaining public order or essential services and supplies rests on the executive and it must therefore, have necessary powers to order preventive detention.
“Having said that, subjective satisfaction of a detaining authority to detain a person or not is not open to objective assessment by a court. A court is not a proper forum to scrutinize the merits of administrative decision to detain a person,” it added.
The court observed that “it is likely that after his release from custody that he (Qayoom) will indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.”
Citing observations made by the Supreme Court in ‘The Secretary to the Government, Public (law and order -F)and another vs Nabila and another (2015) the J&K High court observed: “Where individual liberty comes into conflict with an interest of the security of the state or maintenance of Public Order, then the liberty of the individual must give way to the larger interest of the nation.”
Describing personal liberty as most cherish freedoms guaranteed under the Constitution under Article 22, the court added a caveat.
The petitioners further told the court that the activities mentioned in grounds of detentions pertained to year 2008 and 2010 and that authorities had relied upon those FIRs detaining the detainee for which the detainee has already been detained in the year 2010.
According to his family, 70-year-old Qayoom, a prominent lawyer, is currently battling multiple ailments inside jail without proper medical care.