The Supreme Court adjourned the plea filed by Senior Advocate and J&K Bar Association President Mian Abdul Qayoom, which challenged the 28th May, 2020 Order of the J&K High Court which had dismissed his habeas corpus petition and upheld his detention under the J&K Public Safety Act, 1978.
A Bench of Justices Sanjay Kishan Kaul and BR Gavai heard the matter and allowed Solicitor-General Tushar Mehta to seek instructions on the issue and to respond regarding the reasons for prolonging detention. Accordingly, they adjourned the plea to July 23rd. Senior Advocate Dushyant Dave and Advocate Vrinda Grover, along with Advocate Soutik Banerjee, appeared on behalf of the Petitioner. To the SG's submission regarding non-serving of the plea upon him, Grover informed the Court that the Office Report indicated that they had already been served. Dave then submitted to the Court that Qayoom had been illegal detained as the detention order was only for a limited period. "I understand Mr. Mehta's anxiety. But, this detention order was for a limited period. The petition was kept pending for 3 months and 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, at this juncture, asked the 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?" The SG responded that Qayoom's ideology went against national interests. He accordingly sought for 10 days' time to seek instructions. This request was opposed by Dave. Justice Kaul noted, "They are trying to sort it out, and there are sometimes compulsions that we have to comply with." The Bench then, taking into consideration that the COVID-19 pandemic demanded sympathy on behalf of the State, 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." Accordingly, the Centre has been directed to respond to this query. On the previous date of hearing, the Court had issued notice on the same 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.
The petition, filed by Advocate-on-Record Aakarsh Kamra on behalf of Qayoom, states that the Petitioner is "Senior Advocate with more than 40 years' standing at the Bar, havingserved as President of the J&K High Court Bar Association for many terms, including from 2014 till the present". It further contends 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. His detention had then been prolonged by invoking provisions of the J&K PSA, 1978. "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." The order of the Respondents had been challenged by Qayoom before the Jammu and Kashmir High Court, which had been dismissed on 07.02.2020. Subsequently, an appeal filed before the HC was also dismissed on 28.05.2020.
The instant Special Leave Petition before the Apex Court states 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 plea further comments on the fragility of Qayoom's health 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.
"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."
In light of the above, the Petitioner had filed the instant petition for special leave to appeal against the "illegal, untenable and unconstitutional findings and observations made in the impugned judgement and order." The matter is now listed on July 23rd.