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Monday, September 21, 2020

HC dismisses J&K Bar Association president’s plea against detention

An application was also recently filed in the court for “for preponing the date of hearing was filed with the plea that directions were required to be issued with a view to ensure proper medical attention to the petitioner”.

Written by Adil Akhzer | Srinagar | Updated: February 8, 2020 3:29:35 pm
Qayoom, through his counsel, had filed a habeas corpus petition, challenging his detention after he was booked on August 8 and shifted outside the Valley.

The Jammu and Kashmir High Court in Srinagar has dismissed a petition filed by J&K High Court Bar Association president Mian Qayoom, presently detained under the Public Safety Act (PSA) and lodged in Delhi’s Tihar Jail, challenging his detention.

“A Court is not a proper forum to scrutinise the merits of administrative decision to detain a person. The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not… this Court does not sit in appeal over decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant,” Justice Tashi Rabastan said while dismissing the petition in the judgment released on Friday.

Qayoom, through his counsel, had filed a habeas corpus petition, challenging his detention after he was booked on August 8 and shifted outside the Valley.

An application was also recently filed in the court for “for preponing the date of hearing was filed with the plea that directions were required to be issued with a view to ensure proper medical attention to the petitioner”. In the plea it was stated that Qayoom was suffering from a coronary disease, prostrate malfunction as also hyper-tension; has only one functional kidney and is also suffering from diabetes and was being administered high doses of insulin.

Subsequently, Qayoom was shifted from a jail in Uttar Pradesh to New Delhi’s Tihar Jail.

Qayoom’s advocate Zaffar Shah told The Indian Express that they will file an appeal in the court.

The court, in the order, has quoted Greek thinker Sophocles, who had said: “Law can never be enforced unless fear supports them.”

“Though this statement was made centuries back, yet it has its relevance, in a way, with enormous vigour, in today’s society as well. Every right-thinking citizen is duty bound to show esteem to law for having an orderly, civilized and peaceful society. It has to be kept in mind that law is antagonistic to any type of disarray. It is completely xenophobic of anarchy. If anyone breaks law, he has to face the wrath of law, contingent on the concept of proportionality that the law recognizes,” Justice Rabastan said.

The court also invoked the iconic Thomas Jefferson in the order. “To lose our country by a scrupulous adherence to the written law would be to lose the law, absurdly sacrificing the end to the means.”

Few more observations:

* “While the object to punitive detention is to punish a person for what he has done, the object of preventive detention is not to punish an individual for any wrong done by him, but curtailing his liberty with a view to preventing him from committing certain injurious activities in future.”

*Saying “acts or activities of an individual or a group of individuals, prejudicial to the security of the State or maintenance of peace and public order, have magnitude of across-the-board disfigurement of societies”, Justice Tashi Rabastan has observed, “No Court should tune out such activities, being swayed by passion of mercy. It is an obligation of the Court to constantly remind itself the right of society is never maltreated or marginalised by doings, an individual or set of individuals propagate and carry out.”

* “Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people.”

* Saying that “subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court”, Justice Rabastan has said, “a law of preventive detention is not invalid because it prescribed no objective standard for ordering preventive detention, and leaves the matter to subjective satisfaction of the Executive.”

It further said, “The reason for this view is that preventive detention is not punitive but preventive and is resorted to with a view to prevent a person from committing activities regarded as prejudicial to certain objects that the law of preventive detention seeks to prescribe. Preventive detention is, thus, based on suspicion or anticipation and not on proof.”

* ”A Court is not a proper forum to scrutinise the merits of administrative decision to detain a person. The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not. It is often said and held that the Courts do not even go into the question whether the facts mentioned in grounds of detention are correct or false. The reason for the rule is that to decide this, evidence may have to be taken by the courts and that is not the policy of law of preventive detention. This matter lies within the competence of Advisory Board. While saying so, this Court does not sit in appeal over decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant.”

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