Alleged secessionist ideology is like a live volcano: J&K HC upholds 2019 PSA detention of J&K HC Bar Association President Mian Qayoom

A Division Bench of the Jammu and Kashmir High Court today upheld the detention of Mian Abdul Qayoom, the President of J&K High Court Bar Association (Srinagar Wing) under the J&K Public Safety Act (PSA), 1978, while dismissing an appeal filed challenging a single judge ruling in the matter last February. (Mian Qayoom Judgement).In doing so, it reiterated the single judge's stance that the Court could not sit in appeal over the subjective satisfaction arrived by the Advisory Board to detain Qayoom. .Detaining authority's subjective satisfaction not open to objective assessment by Court: HC dismisses plea against PSA detention of J&K Bar Association President.Qayoom was placed under preventive detention in August last year. His detention under the J&K PSA was made around when Article 370 of the Constitution, which had earlier conferred special autonomy to Jammu and Kashmir, was abrogated by the Central Government..While upholding the detention order today, the Bench of Justices Ali Mohammad Magrey and Vinod Chatterji Koul today expressed its agreement with the State's submissions that Qayoom appeared to have shown a continued propensity to act on secessionist ideologies in so far as Jammu and Kashmir was concerned. .The observation was based on intelligence reports submitted by the State to the Court, the contents of which were, however, not recorded in the order. Advocate General DC Raina led the arguments for the State authorities. .Appearing for the appellant, Qayoom's wife, Senior Counsel ZA Shah contended that the detention order had cited stale FIRs against Qayoom dating back to 2008 and 2010, which had no immediate proximate link to his actions over 9 years later..The contention assumed more significance, given that the Court found that most of the grounds cited by the State in the detention order "are somewhat clumsy." .The Court, however, pointed out that under Section 10-A of the J&K PSA, it has been laid down that the grounds of detention severable. This means that a detention order would sustain, even on a solitary single ground, independent of other grounds if the other grounds are found to be invalid. .In this case, the validity of the detention order was substantially adjudged by testing the validity of citing the 2008-2010 FIRs against Qayoom as a ground for his detention. .The Court, ultimately, concluded that the FIRs could not be dismissed as stale over time, given that it concerned a secessionist ideology alleged against Qayoom. The Bench added,."... an ideology of the nature reflected in the FIRs and alleged against the detenue herein is like a live volcano. The ideology has always an inclination, a natural tendency to behave in a particular way; It is often associated with an intense, natural inclination and preference of the person to behave in the way his ideology drives him to achieve his latent and expressed objectives and when he happens to head or leading a group, as the allegations contained in the FIRs suggest, his single point agenda remains that his ideology is imbued in all those whom he leads", the Court's order reads.."... an ideology that has the effect and potential of nurturing a tendency of disturbance in public order, such as is reflected in the FIRs registered against the detenue in the instant case, and of which the detaining authority is reasonably satisfied, can be said to be different from a criminal act or acts done sometime in the past and, therefore, would always continue to be proximate in their impact and consequence."Jammu & Kashmir High Court.These observations were made in the backdrop of the State's allegations that Qayoom had demonstrated his continued propensity to propagate secessionist tendencies as per its intelligence reports that the Bench perused. .While, the content of these reports was not divulged, the dates on which the allegedly secessionist activities were carried out were recorded in the Court's order to state that there was a live link between Qayoom's alleged activites and the State's apprehension (as per the detention order) that Qayoom may act to disrupt public order. .The Court's order informs, "The activities are reported to have been resorted by the detenue on 26.06.2010, 04.07.2010, 09.10.2015, 17.08.2016, 29.12.2016, 22.02.2017, 01.03.2017, 08.03.2017, 25.08.2017, 05.09.2017, 29.09.2017, 11.10.2017, 03.03.2018, 07.05.2018, 17.10.2018, 24.10.2018, 15.03.2019 and 15.05.2019.".The Bench said, "we find that there are a chain of reports depicting the activities of the detenue even after 24.06.2010, the date when the last of the aforesaid four FIRs was registered against the detenue, and we are satisfied about the continued propensity of the detenue which must have weighed with the detaining authority to arrive at the satisfaction recorded in the impugned detention order.".The Court added, "These reports could be well said to constitute new facts."."There is thus a live link established between the alleged activities of the detenue and the detention order."Jammu & Kashmir High Court.In a later part of the order, however, a reference appears to have been made to the alleged activities of Qayoom that led the Court to arrive at this conclusion. .It is stated, "So far as the ideology attributed in the FIRs is concerned, public disorder is its primary object and surviving factor. Taking out processions knowingly that such acts are likely to stoke public disorder, especially so when there are restrictions in position, raising provocative and antinational slogans of sorts, holding close door meetings within separatist leaders as being President of the Bar etc. etc. are such instances which point to only one thing that the ideology is not an act done by the detenue in the past, but it is his continuous inclination and preference.".The Court went on to hold, "When it comes to propensity of an ideology of the nature reflected in the FIRs supported by the intelligence reports we have gone through, we are convinced that it subserves the latent motive to thrive on public disorder. In that context, we feel that most of the judgments of the Apex Court do not fit the facts and the given situation.".Inter alia, the Court also found no merit in the contention that the detaining authority had not applied his mind before passing the detention order, given that the grounds of detention outlined in the order was a verbatim reproduction of the Police Dossier on Qayoom. .While the Bench observed that there is a resemblence in the contents of the order and the dossier, it rejected the contention on the ground that the concerned authority had clearly stated that he had passed the order after perusing the records, applying his mind and being satisfied that the detention was requred to maintain public order..Arguments that Qayoom's detention had been extended beyond the maximum period permissible for detention were rejected, with the Court relying on Section 18 of the J&K PSA to hold that, "one who has power to do a thing, has the power to modify, alter or revoke it.".With these, among other, observations the Bench found that it does not find amy merit in the appeal before it. The appeal was, accordinagly, dismissed and the detention 2019 PSA detention of Qayoom upheld. .The Court also declined to entertain a connected plea to release Qayoom from the Tihar jail where he is stated to be presently lodged, in the interest of his health amid the COVID-19 pandemic. The Court was told that Qayoom had underlying ailments suffered and that numerous surgeries had been undergone by him..The Court observed that Qayoom may instead make an application for the same to the concerned authorities, adding that "an adverse order on any such application, if made, shall not entail any legal proceedings, whatsoever.".The Court referred to the State's submissions that the alleged ideology cannot be confined or limited in time to call it stale, unless "the person concerned declares and establishes by conduct and expression that he has shunned the ideology.".In this backdrop, the Bench remarked, "we leave it to the detenue to decide whether he would wish to take advantage of the stand of the learned Advocate General and make a representation to the concerned authorities to abide by it.".Read the Judgment: