Jammu & Kashmir High Court Upholds Detention of State Bar Association President


The Mian Qayoom case concerns the Jammu & Kashmir government’s detention of Jammu & Kashmir High Court Bar Association President Mian Abdul Qayoom for allegedly propagating ‘secessionist ideology’. The division bench of the J & K HC upheld the same court’s single judge bench order on the detenue’s detention.

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Mian Qayoom(File photo)      Image Source: National Herald


by Ishan Kumar      25 September 2020

This letter Patents Appeal was filed on the detenue’s behalf against the single-judge bench’s judgment which had earlier dismissed the Writ petition for habeas corpus seeking revocation of the detenue’s detention order under the Jammu and Kashmir Public Safety Act, 1978. The facts of the case are that the District Magistrate, Srinagar had detained the detenue during the intervening night of 4/5th August 2019 under Section 8 of J & K Public Safety Act,1978(JK PSA). The aforesaid detention order was imposed to prevent the detenue from acting in any manner prejudicial to the maintenance of public order. The grounds of Qayoom’s detention order stated that he was one of the staunchest advocates of secession of Jammu and Kashmir from the Union of India and he articulated such views in public through his speeches and participation in such activities.

According to the appellants, the old FIRs relied upon by the detaining authority to arrest Qayoom were “wholly vague” as they did not have any live link to his acts nine years later. Further, they argued that the detention order is unfounded as it suffers from non-application of mind due to the detainee’s actions not affecting the public order, contrary to what has been claimed in the order. Furthermore, they argued that the ideological affiliation of a person whatsoever is not an offence as long as its outer manifestation does not result in a violation of some law. The appellants submitted that Article 19 of the Indian Constitution gives the citizen a right of free speech irrespective of his ideology.

According to the respondent, “subsistent ideology” nurtured cannot be restricted to a particular time frame to qualify it to be called stale or fresh, unless the person demonstrates it through conduct that he has shunned the ideology. The respondents contested the claim of the appellants that the detention order was imposed on account of non-application of mind by quoting “Babulal Parate Vs State of Maharashtra (1961), wherein it was held that an order passed under Section 144 Cr.P.C. is in the interest of maintenance of public order. The Advocate General of J & K argued that on similar lines, Qayoom’s conduct of leading processions of lawyers when prohibitory orders were in place amounts to defying public order.

Interestingly, the high court upheld the detention of the Qayoom despite admitting that the grounds of his detention are “somewhat clumsy”. The court further stated that an ideology of nature reflected in the FIRs and alleged against the detainee “is like a live volcano”. The shaky reasoning given by the high court in the instant case becomes all the more problematic when seen in the light of rulings given by the Apex Court and other Indian High courts in similar cases.

For instance, the division Bench of Kerala High Court in the “State of Kerala Vs State of Kerala” (2019) expounded that liberty is the state of being free within society from oppressive restrictions imposed by authority on one’s way of life, behaviour or political views. The aforementioned case also witnessed a similar set of facts wherein the petitioner was detained on mere suspicion of his being a Maoist, which was held to be violative of Article 21 of the Indian Constitution. Furthermore, the freedom of an individual to profess a political ideology was held to be an important facet of his right to personal liberty under Article 21 in the landmark K.S. Puttaswamy case. Professor Baxi’s apt exposition, which was cited in the Puttaswamy verdict, of the need to include the capacity to make one’s own free choices under the ambit of human dignity, which is a quintessential component of Article 21 was also completely disregarded in the Mian Qayoom verdict.

Perhaps, the major shortcoming of the High Court in the instant case was the fact that it acted more executive-minded than the executive. More broadly, the verdict is emblematic of a larger issue – the failure to protect the rights of detainees in India.

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