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Reply to plea challenging Masrat’s 36th PSA detention: Court to Govt

The High Court on Tuesday directed the state government to respond to a plea seeking release of Muslim League leader Masarat Alam Bhat from preventive custody.A bench of Justice Alok Aradhe issued notice to the government asking it to file objections within three weeks to the plea against 36th detention order of Bhat under Public Safety Act.

The Court directed the government to produce record related to detention of Bhat and put his counsel at liberty to make a mention before the Vacation bench in June for listing the case.

Farooq Ahmad Bhat on behalf of his nephew Masarat Aalam Bhat has approached the court seeking scarping of detention order (14-11-2017) and immediate release of Alam.Citing law laid down by the Supreme Court in its various judgments, Bhat through his counsel Advocate Mian Tufail has pleaded how the law is being violated by the government to keep Alam behind bars.

“The respondents have been relentlessly passing detention orders on the grounds that run afoul of constitution and safeguards inbuilt in the preventive detention statute, on routine basis, in blatant violation of court orders” pleads Bhat.Preventive detention, he said, is recognized by constitution and its constitutionality is upheld only because it is justified as an exceptional measure.

“To make it the rule rather than the exception goes against the very basis of constitutionality of laws authorizing preventive detention”.

Underscoring that building of safeguards within preventive detention laws are what save them from vice of unconstitutionality, the petitioner pleads, “However when the inbuilt safeguards are openly flouted in manner the respondents have done, the act of the respondents become not only illegal but also unconstitutional.”

Citing Bhat’s 16th detention order which had said “since normal law has not been sufficient to stop you from indulging in secessionist activities and you have always been represented top lawyers,” Bhat pleads that such utterances find no place in order of detention.

“And the state is brazen enough to put such statements on record knowing well that the same would be subject to judicial scrutiny. The statement can either be read to be admission that the entire machinery of the criminal law available at the disposal of the state is not adequate to deal with the man or the state is not prepared to use the ordinary legal process against him but prefers to use subversive means of prevention detention indefinitely”.

Bhat pleads that either way the situation created by the action of the state is sinister. Referring to the detention order indicating that the detainee’s activates in jail continue to exhort other inmates to continue his “so called secessionist activities”, the petitioner pleads that such statements have also been repeated in prior detention orders with respect to his activities in other prisons of the state.

“It is palpably clear that the state actions are not to prevent the commission of any offence, but only to penalize the detenue for his ideology which is neither illegal nor by means his creation”.

Citing the detention order (dated 30-10-2012), in which Bhat was termed as an in “corrigible secessionist”, the petitioner said the detention order was challenged before Supreme Court. “When the SC issued notice to the respondents for filing counter affidavit and justifying the detention of the detenue, they informed the court that the government had revoked the detention order (dated 18-3-2013) with immediate effect. Consequently the SC in its judgment (dated 22-3-13) observed that in view of the revocation of the order nothing survives in the petition,” Bhat pleads.

He said the SC however directed that if any fresh order is issued by the J&K government with regard to Bhat, the same shall not come into force for a period of one week from the date of the communication of the order to enable him to pursue appropriate legal remedy.

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