NASEER A GANAI
Srinagar, Nov 21: A petition has been filed in the High Court to challenge the authority of the State to detain Jammu and Kashmir Liberation Front (JKLF) chairman Muhammad Yasin Malik for his political beliefs, saying the political belief of the detainee that final disposition of the state of Jammu and Kashmir is yet to be determined is widely accepted.
The petition filed by Amina Malik, sister of Muhammad Yasin Malik, has stated that she would demonstrate to the court that the detention of her brother is violation of natural justice, rule of law, Constitution and all norms. The petition has been filed through senior counsel Z A Shah.
“The detention is violative of United Nation’s Charter and Resolutions besides International Covenants and Declaration of Human Rights,” the petition said.
Muhammad Yaseen Malik was detained on the orders of District Magistrate Srinagar on October 30 on the grounds that the detainee needs to be prevented “from acting in any manner prejudicial to the maintenance of security of the State.”
Malik was arrested in the evening of October 23 and kept in police station Sumbal under police remand and FIR 260/2008 was registered against them. However, before the expiry of 15 days, the District Magistrate passed detention order against him.
The petitioner describes the detention as illegal, unconstitutional and unwarranted. The petitioner states that the detaining authority has ordered the detention in sheer abuse of the powers vested in him under Public Safety Act, 1972.
The petitioner states that the grounds of detention do not justify detention orders. “The satisfaction assumed by the detaining authority as reflected in the grounds of detention is sham, illusory, unreasonable and based on alleged facts which are stale, irrelevant, unconstitutional, outside the purview of the Act, malafide and extraneous,” the petition said.
Interestingly the petitioner has not been apologetic about the political beliefs of the detainee and said holding political belief different from that of the State is the birth right of every human being.
“The political belief of the detainee that final disposition of the state of Jammu and Kashmir is yet to be determined is a widely accepted belief but since the political belief of other political parties is closer to the state interests, law is used to prevent the detainee from propagating his political belief,” the petitioner said.
The petition states that the political belief of the detainee has roots in the very evolution of, what now constitutes, state of Jammu and Kashmir.
“There are powerful historical reasons supporting and recognizing the position that the final disposition of the state, in accordance with the aspirations of its people, is yet to take place. This historical position is recognized by the resolutions of the United Nations, Constitution of India, Constitution of Azad Kashmir and other agreements, covenants, discussions and representations made by the leaders of the sub-continent spread over last 61 years,” the petition said.
To the ‘allegation’ that Malik has become a “full time dedicated member of All Party Hurriyat Conference” the petitioner said that APHC have adopted a constitution which does not seem to have been even seen by the detaining authority. “The constitution makes it very clear that the ultimate choice of the final disposition of the state will vest in the people of the state. It is entirely for the people of the state to decide as to what they want, in the matter of accession of the state with any other country and or they don’t want any accession but would maintain their independence as it was prior to 27th October, 1947.”
The detainee is accused of trying to ‘liberate state of J&K from the Union of India by waging war through its armed organizations.’ To this, the petitioner submitted that firstly it is entirely for the people of the state to liberate itself and secondly JKLF as from 1994 has resorted to non-violent modes for propagating its political beliefs.
The detainee is accused of having visited Shopian on September 16, 2008. The petitioner said that slogans are raised by the people themselves and voluntarily. The slogan of “Hum Kya Chahtay Azadi” is the slogan of the people. “How can the detainee be detained on the basis of said slogan.”
The detainee is accused of having been jailed previously and travelling abroad and seeking cooperation of other sovereign governments in support of his political views.
“The detaining authority has gone off the track in taking note of the discussions and the response of other sovereign countries which discussions and response took place on the soil of those countries. It appears to the petitioner that the other countries which support the cause propagated by the detainee also find merit in his political views and demerit in the state policies and its political beliefs and the political beliefs supporting such policies,” the petitioner said, adding such an act on the part of sovereign countries cannot be questioned by the detaining authority.
The petition says it is a part of the belief of the detainee that a handful of politicians, whose job is to practice politics irrespective of the aspirations of the people, but purely on the strength of the state forces, cannot determine for the people or on behalf of the people their ought to be aspirations as against their actual aspirations closer to their heart. “The hartal and bandhs which the people observe are intended to convey to the whole world that the people are not with political belief of the state controlled by handful of politicians and that they show their obedience more to the people like the detainee than those who hold political power on the strength of the state forces,” the petitioner said.
“The detaining authority in the grounds of detention leaves no space for the people who hold different political beliefs than the one followed by the state. In doing so, the detaining authority has based his satisfaction clearly on unconstitutional and misconceived grounds,” the petition reads