The plea filed by Senior Advocate and J&K Bar Association President Mian Abdul Qayoom challenging the 28th May, 2020 Order of the J&K High Court dismissing the habeas corpus petition and upholding detention under the J&K Public Safety Act, 1978 was adjourned by the Supreme Court.
The matter was heard by the Bench of Justices Sanjay KishanKaul and BR Gavai.Solicitor-General Tushar Mehtawas allowed to seek instructions on the issue and to respond regarding the reasons for prolonging detention. Accordingly, theplea was adjourned to July 23rd.
The Petitioner was represented by Senior Advocate Dushyant Dave and Advocate Vrinda Grover, along with Advocate Soutik Banerjee.
Grover informedthe Court on the SG’s submission regarding non-serving of the plea that the Office Report indicated that they had already been served.
Mian Abdul Qayoom had been illegaly detained as the detention order was only for a limited period, marked Dave.
“I understand Mr. Mehta’s anxiety. But, this detention order was for a limited period. The petition was kept pending for 3 months and Mian Abdul Qayoom has been illegally detained. Habeas corpus petitions must be decided at the earliest and should not be adjourned for long periods of time.”
Justice Kaul, questioned SG, “His detention period is about to expire. Secondly, his (Qayoom) ideology remains the same. In the current scenario, would you still like to keep this pending?”
SG told in response that Mian Abdul Qayoom s ideology went against national interests. He accordingly sought for 10 days’ time to seek instructions, while the request was opposed by Dave.
Justice Kaul marked, “They are trying to sort it out, and there are sometimes compulsions that we have to comply with.”
Taking into consideration that the COVID-19 pandemic demanded sympathy on behalf of the State, the Bench stated, “He is 73 years old. We want to know on what basis you would like to retain him in Delhi’s Tihar. Moreover, his detention period as per order is about to expire.”
The Centre has been directed to respond to this query, accordingly.
the Court had issued notice on the previous date of hearing and had passed an interim order dictating that Qayoom must be provided with summer clothing and daily essentials while he remains in detention at Tihar Jail.
On behalf of Mian Abdul Qayoom, Advocate-on-Record AakarshKamrafiled the petition and stated that the Petitioner is “Senior Advocate with more than 40 years’ standing at the Bar, having served as President of the J&K High Court Bar Association for many terms, including from 2014 till the present”.
Contentions were made that the respondents had detained Qayoom on the intervening night of 4th and 5th August, 2019, under the provisions of Sections 107 read with 151 of the Jammu and Kashmir Code of Criminal Procedure. Provisions of the J&K PSA, 1978 have been invoked in prolonging his detention.
“Thereafter, an order of detention under the Public Safety Act was passed against the detenu on 07.08.2019, and on 08.08.2019, the Petitioner was taken to Central Jail, Agra, Uttar Pradesh, without any prior notice of intimation, where he was kept in solitary confinement.”
Mian Abdul Qayoom’s challenge had been dismissed on 07.02.2020 before the Jammu and Kashmir High Court. An appeal was filed before the HC which was also dismissed on 28.05.2020 subsequently.
Before the Supreme Court the instant Special Leave Petition of Mian Abdul Qayoom stated that “the impugned common judgement and order dated 28.05.2020 is ex facie unsustainable in law as it is premised on stale, irrelevant, remote vague, imprecise and deficient grounds of detention. The impugned judgement and order concluded that most of the grounds in the detention order ‘somewhat clumsy’ which implies that the High Court too found them wanting”.
The fragility of Mian Abdul Qayoom’s health was explained on account of him being more than 70 years of age and suffering from life threatening heart ailments showing blockade of artery to the extent of 55-60%, with uncontrolled blood sugar and surviving on one functioning kidney. Furthermore, he sustained a bullet injury in 1995 due to which he suffered cervical vertebral column injury was also mentioned.
“In such conditions, the Petitioner is a high risk vulnerable to COVID-19 due to several co-morbid conditions. Yet, the impugned judgment and order rejects the request for transfer of the Petitioner to a jail closer to home in Srinagar conditional on grounds that are repugnant to the constitutional jurisprudence of Article 19 and 21, and cannot be sustained in law.”
The Petitioner had filed the instant petition for special leave considering all the above factsto appeal against the “illegal, untenable and unconstitutional findings and observations made in the impugned judgement and order.”
The matter is next listed on July 23rd.