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The Supreme Court of India confirmed an agreement reached between the parties that a lawyer in the Kashmir Valley would be released from the “preventative detention” he had been held in for a year on suspicion of his “secessionist ideology”. The lawyer’s wife had brought a habeas corpus application after her husband was detained “with a view to preventing him from acting in any manner prejudicial to the maintenance of public order”. A single judge of the High Court and the Division Bench of the High Court confirmed the legality of his detention on the grounds that the State was justified detaining him if they believed his ideology had the potential to disturb the public order. The Supreme Court did not rule on the merits of the case as – on the Court’s urging – the State had agreed to release the lawyer on the condition that he did not return to his hometown for seven days and did not make public statements.
On the night of August 4, 2019, Abdul Mian Qayoom, a practicing advocate and the President of the Srinager J&K High Court Bar Association, was detained in Srinager in the State of Jammu & Kashmir (J&K) in the Kashmir Valley, India. Qayoom – who was approximately 76 years old – was placed under preventative detention “with a view to preventing him from acting in any manner prejudicial to the maintenance of public order” in terms of section 18 of the J&K Public Safety Act [para. 1, High Court judgment]. Section 8(3) of that Act defines conduct which may constitute prejudice to public order as including “promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on the ground of religion, race, community or region”.
The context to his arrest was the amendment to the Constitution by the Indian Government on August 5, 2019 which revoked the constitutional autonomy of the state of Jammu & Kashmir. In the aftermath of the amendments internet shutdowns and curfews were imposed and several political leaders and prominent persons were preventively detained.
In justifying Qayoom’s detention the State referred to his belief that the state of Jammu & Kashmir is a disputed territory in India and what it termed “his secessionist ideology”. It added that Qayoom had regularly spoken and participated in public activities to further this ideology, and had used the constitutional office of the Bar Association as a platform for other speakers with a similar ideology. The Bar Association had also sponsored strikes which the State described as inciting the public to commit activities “prejudicial to public order” [para. 24, Division Bench judgment]. Accordingly, the document setting out the grounds for his arrest stated that “[o]wing to the track record of [Qayoom] and agencies’ inputs about his likely involvement to instigating the public he has been arrested in terms of [the J&K Public Safety Act] and is presently in custody” [para. 24, Division Bench judgment]. The document added that “[i]n order to stop subject from indulging in activities prejudicial to maintenance of public order, peace and tranquillity, his detention under provisions of Public Safety Act- 1978 at this stage has become imperative” [para. 24, Division Bench judgment].
After initial difficulty in locating where Qayoom was being detained, Qayoom’s wife brought a habeas corpus petition before the High Court in Srinager for her husband’s release. On February 2, 2020 – nearly six months after Qayoom was first detained – a single judge of the High Court rejected the petition and upheld the detention order. The High Court noted that although the right of personal liberty is protected by the Constitution, the Constitution does “leav[e] room for placing a person under preventive detention without a formal charge and trial and without such a person held guilty of an offence and sentenced to imprisonment by a competent court” because it seeks to “save society from activities that are likely to deprive a large number of people of their right to life and personal liberty” [para. 5, High Court judgment]. The High Court held that all requirements in the J&K Public Safety Act had been complied with, and that Qayoom had been given the opportunity to make representations against his detention but that he had not taken that opportunity [para. 9.4, Single Judge judgment].
Qayoom’s wife appealed the High Court’s decision to the Division Bench of the High Court. She argued that the State had not been able to attribute any activity to Qayoom as it had relied solely on criminal complaints laid against Qayoom from 2008 and 2010 which had not led to prosecution. She argued that these “stale” complaints could not be used to detain Qayoom eleven years later and that, in any event, those complaints did not disclose any evidence of conduct prejudicial to public order: Qayoom’s wife argued that the State’s claim of Qayoom’s “secessionist ideology” should relate to “security of the State” offences rather than “public order” offences. In addition, Qayoom’s wife argued that even if it was accepted that Qayoom had a “secessionist ideology” in 2010, he would have to have manifested that ideology in a way that constituted criminal conduct because the mere holding of beliefs, in the absence of any violation of the law, was protected by the right to freedom of speech and expression. Qayoom’s wife argued that “Article 19 of the Constitution gives the citizen a right of speech and a citizen can speak on whatever his ideology may be; he does not commit an offence as long as he does not violate any law”, and that Qayoom had not violated any law [para. 39, Division Bench judgment]. She stressed that as no criminal case had been filed against Qayoom since 2010 it could not be presumed that his conduct was prejudicial to public order [para. 39, Division Bench judgment].
The Advocate General of the erstwhile State of Jammu & Kashmir appeared on behalf of the State, and submitted that, unlike other criminal acts, an ideology is cultivated over time. It argued that ideology cannot be confined to time or classified as “stale” or proximate, and is presumed to continue “unless the person concerned declares and establishes by conduct and expression that he has shunned the ideology” [para. 37 of the Division Bench Judgment]. The State argued that preventative detention “is a precautionary power exercised in reasonable anticipation and it may or may not relate to an offence” [para. 3.2, High Court judgment].
The Division Bench accepted that the grounds for Qayoom’s detention were “somewhat clumsy” but held that “the examination of cases registered against him reveals that despite holding a responsible position of Bar Association President he willfully and actively indulged in unlawful activities and instigated the people for violence thereby disturbing the public order.” [para. 25 Division Court judgment]. The Division Bench found that in “the case with an ideology; one may not have violated any law in the immediate past, but if the detaining authority has suspicion that the person holding such an ideology has the potential to do so, he can take the measures permissible within the law to prevent him from doing so” [para. 40, Division Court judgment]. The Court therefore dismissed Qayoom’s arguments that the criminal complaints were stale and that merely holding a view was not justifiable to lead to preventative detention.
The Division Bench recognised that the State had argued that there was no time period on ideology as espoused by Qayoom in justifying their arrest based on actions taken up to eleven years prior – unless “the person concerned declares and establishes by conduct and expression that he has shunned the ideology” [para. 81]. The Court noted that Qayoom could make such a declaration and that the relevant law enforcement officials would then be in a position to determine whether his continued detention was necessary in order to protect public order.
Qayoom’s wife then appealed to the Supreme Court.
The three-judge bench of Supreme Court issued a judgment in which it noted that both sides had reached agreement on the release of Qayoom. As a result the Court stated that “we are not called upon to examine the legality and validity of the impugned judgments and we leave it at that” [pg. 2, Supreme Court judgment].
The Court stated that the agreement was that Qayoom would be released on July, 30 2020 but that he would not travel to Jammu and Kashmir until August 7, 2020 and would not make any public statements.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By not determining the merits of the case the Supreme Court did not comment on the legality of using “preventative detention” against an individual who had not committed any offences but whose political beliefs were perceived to be a threat to public order. The Supreme Court therefore failed to give effect to the right to freedom of expression, protected in the Indian Constitution.
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