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'Prolonged Detention Over 10 Months Unconstitutional' : Habeas Plea In SC For Release Of J&K Congress Leader Saifuddin Soz

Radhika Roy
29 May 2020 10:23 AM GMT
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A Habeas Corpus petition has been filed in the Supreme Court against the Government of Jammu and Kashmir's detention order of octogenarian Congress leader and former Union Minister Prof. Saifuddin Soz who has been under house arrest since 5th August, 2019.

The petition, filed by Advocate-on-Record Sunil Fernandes on behalf of Prof. Soz's wife, Mrs. Mumtazunnisa Soz, states that "ten months have passed since his first detention, and he is yet to be informed of his grounds of detention. All efforts by him to obtain a copy of the detention order(s) have been of no avail due to the illegal, arbitrary exercise of powers by the Respondent No. 2."

The plea further contends that the detention is wholly contrary and perverse to the constitutional safeguards laid down under Article 21 and 22 of the Constitution of India, as well as the law on prevention detention. It is further in contravention of the statutory scheme of the Jammu and Kashmir Public Safety Act, 1978 ["PSA Act"], under which the detention order has been purportedly passed.

It has been averred in the plea that there are glaring violations which surrounding the illegal detention of the detenu:

1. The grounds of detention have not been communicated to the detenu by the authority passing the detention order. No copy of the order has been provided, despite numerous requests. This is in grave violation of Article 22(5) of the Constitution of India which states that the authority making the order shall communicate to the dentenu the grounds on which the order has been made, and shall afford the detenu the earliest possible opportunity of making representation against the order.

"Aside from not being furnished with the grounds of detention, and being virtually denied of the right to make a representation, the detenu has been kept in detention without reasons for a period of more than ten months on the date of filing this petition".

Furthermore, under the PSA Act, the maximum period of detention under Section 18 is three months in the first instance, extendable up to 12 months if the person is acting in a manner prejudicial to the maintenance of public order. It is six months in the first instance, extendable up to two years for persons acting in any manner prejudicial to the security of the state.

2. In contravention of constitutional guidelines as well as the the statutory scheme of the PSA Act, the detenu has been denied the right to make a representation against the order(s) of detention.

The plea avers that it has been ten months since the detenu was placed on house arrest and, due to the non-furnishing of grounds of detention as well as non-supply of copy of the order, the detenu has not been able to make any representation against the order. This is in violation of Article 22(5) as well as Section 13 of the PSA Act. The plea refers to the case of Ibrahim Ahmad Batti v. State of Gujarat (1982) to drive home this point.

3. A prolonged and indefinite detention leads to the violation of the constitutional safeguards enshrined under Article 21 and Article 22, as well as the law on preventive detention. The plea refers to the case of State of Maharasthra & Ors. V. Bhaurao Punjabrao Gawande (2008) to illustrate the primacy of Article 21, even in cases of preventive detention.

4. Conduct of the detenu showcases that there is no criminal antecedent and has not indulged in any communication that could be construed as the commitment of an offence under the PSA Act.

Section 8 of the PSA Act stipulates the powers to make orders for detention. It states that the Government may direct for the detention of the person if it satisfied that any person is acting in any manner prejudicial to the security of the State, or the maintenance of the public order.

The plea states that "in this regard, it may be appreciated that the detenu is a senior citizen and an octogenarian. As already stated, the detenu is a man of letters and is of an academic bent. His conduct, both prior to and post the revocation of status of the State of Jammu and Kashmir, has been peaceable.

He has no criminal antecedent and has never in the past committed any offence, let alone those of disturbing the security of the State or public tranquility in any manner as described under Section 8(3) of the Act".

In light of the above, the habeas corpus petition has been filed in the Supreme Court of India.

Yesterday, the Jammu and Kashmir High Court upheld the detention of HC Bar Association President Mian Abdul Qayoom under the PSA Act, stating the the 70-year old detenu had a "tendency" of disturbing law and order, and that his ideology was like a "live volcano". Accordingly, the High Court observed that it would not be appropriate to interfere with the impugned order of detention.

Qayoom has also been under detention since August 5, 2019, when the Central Government took measures to abrogate the special status of Jammu and Kashmir under Article 370 of the Constitution of India.

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