WP(Crl) no.251/2019
CrlM nos.1123/2019; 1063/2019
1060/2019; 767/2019; 728/2019
Reserved on: 03.02.2020
Pronounced on: 07.02.2020

Mian Abdul Qayoom …….Petitioner

Through: Mr Z. A. Shah, Senior Advocate
with Mr Manzoor A. Dar, Advocate

Versus

State of J&K and others ……Respondent(s)

Through: Mr B.A.Dar, Sr. AAG with
Mr Shah Amir, AAG for respondents 1,3&5
Mr T. M. Shamsi, ASGI for respondents 4&6

CORAM: HON’BLE MR JUSTICE TASHI RABSTAN, JUDGE

JUDGEMENT

1. District Magistrate, Srinagar – respondent no.2 herein (for brevity “detaining authority”), has, by Order no.DMS/PSA/105/2019 dated 7th August 2019, placed Mr Miyan Abdul Qayoom son of Miyan Abdul Rehman resident of Bulbulbagh, District Srinagar, under preventive detention, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. It is this order, of which petitioner is aggrieved and throws challenge thereto on the grounds tailored in petition on hand.

2. The case set up in instant petition is that detenu is a renowned practising senior Advocate in High Court of J&K for last forty years and that he is also President of J&K High Court Bar Association, Srinagar. It is submission of petitioner that detenu had been earlier placed under preventive detention in the year 2010 and after incarceration in various Sub Jails of J&K, the detention order was withdrawn. The detenu is said to have been arrested during intervening night of 4th/5th August 2019 and lodged in Police Post Rangreth for two days and after that he was shifted to Central Jail, Srinagar. Upon having ken thereabout, petition, being WP(Crl) no.248/2019, was filed by General Secretary of J&K High Court Bar Association, Srinagar, in which notice was issued upon respondents, asking them to disclose the authority under which detenu was jailed. The said petition, however, was withdrawn by petitioner with a liberty to file a fresh as petitioner had reliably learnt that detenu was likely to be placed under preventive detention. It is averred that close relations of detenu went to Central Jail, Srinagar, to enquire about his presence, where they were intimated that detenu had been shifted from Central Jail, Srinagar. It is maintained by petitioner that a news item, circulated by news channels, disclosed that nearly 20 people from Central Jail, Srinagar, had been shifted and lodged in Central Jail, Agra and finally, they came to know about lodgement of detenu in Central Jail, Agra under preventive detention. It is claimed that close relations of detenu managed to get the order of detention, communication dated 7th August 2019 and grounds of detention, on 17th August 2019. The detenu is said to be suffering from various ailments.

2.1. It is also averred in writ petition that respondent no.2 has issued impugned order of detention on the basis of a communication of respondent no.3 dated 6th August 2019 along with material produced before him with connecting documents, but the said communication was not provided to detenu nor connected documents, which has deprived him of making an effective representation before detaining authority or government. The material relied upon by detaining authority is stated to have not been furnished to detenu.

2.2. It is maintained that grounds of detention are replica of dossier inasmuch as grounds of detention have not been formulated by respondent no.2 and that order of detention and grounds of detention have been signed by respondent no.2 without application of mind and without going through grounds of detention.

2.3. Further submission of petitioner is that activities mentioned in grounds of detention pertain to the year 2008 and 2010 and that respondent no.2 has relied upon FIRs registered in the year 2008 and 2010 for detaining detenu, for which detenu had already been detained in the year 2010 and that such material cannot be relied upon for repeating the order of detention. Petitioner states that a mention is made about his activities after death of Burhan Wani in the year 2016, which fact is not correct and that it is a false allegation levelled against detenu inasmuch as these incidents, which have been relied upon by respondent no.2, for passing impugned order of detention are vague, without any material to support the same. The detaining authority is said to have not even mentioned as to what has happened to FIRs relied upon by detaining authority in grounds of detention and as to whether FIRs have been concluded and put to the Court for trial by producing Challan or whether investigation has been concluded or completed by police stations concerned, in these FIRs even after nine years, which would mean that FIRs itself have become stale, so far as connecting detenu with today’s situation is concerned.

2.4. It is stated that respondent no.2 has nether shown awareness of the fact that as to whether detenu has been granted bail in these FIRs, particularly in FIR no.74/2008 and FIR no.27/2010, in which, one of the offences is 13 ULA(P) Act nor respondent no.2 has reflected in grounds of detention that as to whether detenu has applied for bail, which confirms non-application of mind on the part of respondent no.2. Even if previous grounds are mentioned, in that eventuality fresh grounds cannot be considered for confirming or putting the person under detention.

2.5. It is claimed that what were decisions taken by Union Government on 5th August 2019, have not been mentioned by detaining authority and what was activity between 5th August 2019 to 7th August 2019, which influenced mind of detaining authority or police that detenu would instigate general public to resort to violence, have not been mentioned by detaining authority because such activities would thereafter become a ground for detaining the detenu under preventive detention, when fact of the matter is that detenu was already detained during intervening night of 4th/5th August 2019.

2.6. It is also submitted that what were sufficient compelling reasons for putting detenu under prevention detention, have not been spelled out by detaining authority either in grounds of detention or in order of detention and even grounds of detention do not mention that which are the activities that led to agitation and on what occasions it endangered public life and property and disturbed peace and tranquillity of the State. Such record has not been provided to detenu.

2.7. It is claimed that respondent no.2 has informed detenu about order of detention dated 7th August 2019, through letter dated 7th August 2019, and has asked him to inform Home Department as to whether he would like to be heard in person by Advisory Board and he has also asked him to make a representation against order of detention to detaining authority or to Government, if he so desires. However, respondent no.2 has not informed detenu as to within how much period of time, he has to inform Home Department about his being heard by Advisory Board or as to within how much period of time he has to make a representation against order of detention to detaining authority or Government.

2.8. Grounds of detention, according to petitioner, are vague, indefinite, uncertain and baseless as also ambiguous and lack in material particulars and essential details, which has rendered detenu unable to make an effective representation against his detention to appropriate authority.

3. Reply affidavit has been filed by respondent. They insist that detenu came to be detained under the provisions of J&K Public Safety Act, 1978, (for brevity “Act of 1978”) validly and legally and that all statutory requirements and Constitutional guarantees have been fulfilled and complied with by detaining authority. It is also insisted that grounds of detention, order of detention as well as the material relied upon by detaining authority have been furnished to detenu well within statutory period provided under Section 13 of the Act of 1978. The warrant of detention was executed by Executing Officer, namely, Inspector Parvaiz Ahmad no.7833/NG, SHO P/S Khanyar and detenu was handed over to S. P. Central Jail, Srinagar. The contents of detention order/warrant and grounds of detention are stated to have been read over and explained to detenu. Grounds of detention, it is submitted, have been framed by detaining authority with complete application of mind after carefully examining the material/record furnished to it by sponsoring agency and only after deriving subjective satisfaction. It is averred that use of expression “subject” in grounds of detention as similar to that of expression “subject” used in dossier will not render the order of detention ineffective and cannot be said to be suffering from vice of non-application of mind by detaining authority. Respondents maintain that in terms of Section 10-A of the Act, a detention order passed under Section 8, which has been made on two or more grounds, shall be deemed to have been made separately on each of such grounds and shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague. Respondents claim that detenu is a practising lawyer in Srinagar having held position of President of J&K High Court, Bar Association Srinagar, and over a period of time, he has emerged as one of the most staunch advocate of secessionist ideology propagating in public through his speeches and appeals and that detenu has been involved in various criminal cases inasmuch as detenu has been using platform of J&K Bar Association for promoting and advocating his secessionist ideology and has been sponsoring strikes while instigating general public for indulging in activities prejudicial to maintenance of public order.

3.1. Respondents also maintain in their Reply Affidavit that detenu has been actively involved in furtherance of his secessionist ideology in the Valley, particularly during agitation of 2008 as also in the agitation at the time of killing of terrorist, Burhan Wani, in 2016, which agitation led to highest magnitude of violence in the Valley, leaving many people dead. Since detenu have had a long history of promoting, propagating and advocating secessionist ideology inasmuch as instigating public wilfully and unlawfully for violence against the government established under law and its functionaries, therefore, detaining authority on careful examination of the entire material furnished to it by all concerned, deemed it expedient, imperative and appropriate to detain detenu under the provisions of the Act of 1978 in terms of order dated 7th August 2019, in that there has been every likelihood and apprehension after Government of India passed law regarding abrogation of Article 370 read with Article 35(A) of the Constitution of India. The detenu in view of his secessionist ideology and on account of his past unlawful activities, having been found prejudicial to maintenance of public order, would instigate general public to resort to violence, which would in the process disturb maintenance of public order. Hence detaining authority found it necessary and imperative to invoke relevant provisions of the Act of 1978 and subsequently detain the detenu in order to preclude him from indulging in activities which would be prejudicial to maintenance of public order.

3.2. It is also insisted that power of preventive detention is a precautionary power exercised in reasonable anticipation and it may or may not relate to an offence. The basis of detention is satisfaction of Executive on a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and prevent him from doing the same. It is claimed that detenu has been staunch advocate of secessionist ideology instigating public through his speeches, hartal calls and physical participation in strikes aimed at disturbing public order and that detaining authority, therefore, while taking into account past activities of detenu found it imperative and necessary to detain him inasmuch as preventing him from indulging in the said activities not with an object of punishing him for something he has done but to prevent him from doing it. Reference of FIRs in grounds of detention reflects and manifests awareness of detaining authority qua conduct and activities of detenu that he has been indulged in. The order of detention has been passed by detaining authority as a precautionary measure based on a reasonable prognosis of the future behaviour of detenu based on his past conduct in light of surrounding circumstances much probability emerged warrant detention of detenu.

4. I have heard learned counsel for parties and considered the matter. I have gone through the detention record made available by learned counsel for respondents.

5. Prior to adverting to case in hand, it would be apt to say that right of personal liberty is most precious right, guaranteed under the Constitution. It has been held to be transcendental, inalienable and available to a person independent of the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down, in Maneka Gandhi v. Union of India, 1978 AIR SC 597, is to be just and fair. The personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such a person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. Nevertheless, it is to be seen that framers of the Constitution of India have incorporated Article 22 in the Constitution of India, aiming at leaving 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. Its aim and object are to save society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case it would be dangerous for the people at large, to wait and watch as by the time ordinary law is set into motion, the person, having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property. It is, for that reason, necessary to take preventive measures and prevent a person bent upon to perpetrate mischief from translating his ideas into action. Article 22 Constitution of India, therefore, leaves scope for enactment of preventive detention laws.

5.1. The essential concept of preventive detention is that detention of a person is not to punish him for something he has done, but to prevent him from doing it. The basis of detention is satisfaction of the Executive of a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. It is pertinent to mention here that preventive detention means detention of a person without trial in such circumstances that the evidence in possession of the authority is not sufficient to make a legal charge or to secure conviction of detenu by legal proof, but may still be sufficient to justify his detention. [Sasthi Chowdhary v. State of W.B. (1972) 3 SCC 826]. 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. Whereas punitive incarceration is after trial on the allegations made against a person, preventive detention is without trial into the allegations made against him. [Haradhan Saha v. State of W.B. (1975) 3 SCC 198]

5.2. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. The compulsions of primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose all their meaning, are the true justifications for the laws of preventive detention. This justification has been described as a “jurisdiction of suspicion” and the compulsions to preserve the values of freedom of a democratic society and social order, some times merit the curtailment of individual liberty. [State of Maharashtra v. Bhaurao Punjabrao Gawande (2008) 3 SCC 613]

5.3. To lose our country by a scrupulous adherence to the written law, said Thomas Jefferson, would be to lose the law, absurdly sacrificing the end to the means. [Union of India v. Yumnam Anand M., (2007) 10 SCC 190; R. v. Holliday, 1917 AC 260; Ayya v. State of U.P. (1989) 1 SCC 374]

5.4. Long back, an eminent thinker and author, Sophocles, had to say: “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. It can never be forgotten that the purpose of criminal law legislated by competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect collective interest and save every individual that forms a constituent of the collective from unwarranted hazards.

5.5. It is worthwhile to mention here that it is sometimes said in a conceited and uncivilised manner that law cannot bind individual actions that are perceived as flaws by large body of people, but, truth is and has to be that when law withstands test of Constitutional scrutiny in a democracy, individual notions are to be ignored. At times certain activities, wrongdoings, assume more accent and gravity depending upon the nature and impact of such deleterious activities on the society. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices.

5.6. 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. 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.

6. Article 22(5) of the Constitution of India and Section 13 of the Act of 1978, guarantee safeguard to detenu to be informed, as soon as may be, of grounds on which order of detention is made, which led to subjective satisfaction of detaining authority and also to be afforded earliest opportunity of making representation against order of detention. Detenu is to be furnished with sufficient particulars enabling him to make a representation, which on being considered, may obtain relief to him.

6.1. In the present case, learned senior counsel representing petitioner, after ingeminating the grounds made in writ petition for quashing impugned detention order, has stated that the case diaries and material, relied upon by detaining authority, have not been supplied to detenu. His further submission is that no material has been given or comes forth for extension of detention of detenu inasmuch as extension of detenu is inconsistent with the observations made by the Division Bench of this Court in Tariq Ahmad Sofi v. State of J&K and others, 2017 (I) SLJ 21 (HC).

6.2. Taking into account above submission of Mr Shah, learned senior counsel appearing for petitioner, it would be in the fitness of things to go through Section 18 of the Act of 1978. It provides:
“18. Maximum period of detention. –
(1) The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 17, shall be –
(a) three months in the first instance which may be extended upto twelve months from the date of detention in the case of persons acting in any manner prejudicial to the maintenance of public order
…………….
(2) Nothing contained in this section shall affect the powers of the Government to revoke or modify the detention order at any earlier time, or to extend the period of detention of a foreigner in case his expulsion from the State has not been made possible.”

6.3. Prior to having an analysis and elaboration qua provisions of Section 18 of the Act, it would be germane to mention here that if one looks at the acts, the J&K Public Safety Act, 1978 is designed for, is to prevent, they are all these acts, that are prejudicial to security of the State or maintenance of public order. The acts, indulged in by persons, who act in concert with other persons and quite often such activities have national level consequences. These acts are preceded by a good amount of planning and organisation by the set of people fascinated in tumultuousness. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed, but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. The said views and principles have been reiterated by the Supreme Court in Gautam Jain v. Union of India another AIR 2017 SC 230.

6.4. It would be apt to have glimpse of Section 8 of the Act of 1978. It reads:
“8. Detention of certain persons. –
(1) The Government may-
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-
(i) the security of the State or the maintenance of the public order;
……………………………………….
it is necessary so to do, make an order directing that such person be detained.
(2) any of the following officers, namely
(i) Divisional Commissioners,
(ii) District Magistrate, may, if satisfied as provided in sub-clause (i) and (ii) of clause [(a) or (a-1)] of sub-section (1), exercise the powers conferred by the said sub-sections.
(3) For the purposes of sub-section (1), [(a) Omitted.]
(b) “acting in any manner prejudicial to the maintenance of public order” means-
(i) promoting, propagating, or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race, caste, community, or region;
(ii) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise, abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order;
(iii) attempting to commit, or committing, or instigating, provoking or otherwise abetting the commission of, mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;
(iv) attempting to commit, or committing or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order;
…………………………..….
(4) When any order is made under this section by an officer mentioned in sub-section (2) he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government.”

6.5. From bare perusal of Section 8 (1) it comes to fore that the Government may, if it is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to security of the State or maintenance of public order, it is necessary so to do, make an order directing that such a person be detained. Sub-Rule (1) of Section 8 of Act of 1978, thus, emphatically, envisions that any person can be placed under preventive detention if the Government is satisfied with respect to such a person that with a view to preventing him from acting in any manner prejudicial to the security of the State or maintenance of public order, it is essential to place such a person under preventive detention.

6.6. Subsection (3) of Section 8 of the Act of 1978 enumerates various prejudicial activities that would fall within the mischief of “acting in any manner prejudicial to the maintenance of public order”. It covers in its fold prejudicial activities in the nature of promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on the ground of religion, race, community or region. It also includes activities of making preparations for using or attempting to use or using or instigating inciting, provoking or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order. Attempting to commit, or committing, or instigating, provoking or otherwise abetting commission of mischief where the commission of such mischief disturbs or is likely to disturb public order, comes within the meaning of activities in any manner prejudicial to the maintenance of public order. Acting in any manner prejudicial to maintenance of public order, also consists of attempting to commit or committing or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more where the commission of such offence disturbs, or is likely to disturb public order.

6.7. Subsection (4) of Section 4 of the Act of 1978 envisions that when an order of detention is made, detaining shall report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after making thereof unless in the interregnum, it has been approved by the Government.

6.8. To see as to whether, in the present case, detaining authority has reported the fact concerning making of order of detention to the Government, I have gone through the detention record produced by learned counsel for respondents. A communication bearing no.DMS/ PSA /Jud/3859/2019 dated 7th August 2019, has been addressed by respondent no.2 (detaining authority) to Principal Secretary to Government, Home Department, for approval of impugned detention order.

6.9. Detention record also comprises of a Government Order no.Home/PB- V /1141 of 2019 dated 7th August 2019. By this order impugned detention order of detenu has been approved and the period of detention has been said to be determined on the basis of opinion of the Advisory Board.

6.10. In such circumstances, detaining authority had, immediately upon issuance of impugned detention order, reported the said fact to the Government and the Government approved impugned detention order. Thus, there is no hindrance in saying that provisions of Subsection (4) of Section 8 of the Act of 1978, have been strictly complied with by respondents.

7. Section 9 of the Act of 1978 provides that a detention order may be executed at any place in the manner provided for executing warrants of arrest. Section 10 envisions that any person in respect of whom a detention order has been made under Section 8 of the Act shall be liable to be detained in such a place and under such conditions including conditions as to maintenance of discipline and punishment for breaches of discipline as the Government may specify and that any person placed under preventive detention shall be liable to be removed from one place of detention to another place of detention.

8. Where a person has been detained in pursuance of an order of detention under Section 8 of the Act of 1978, made on two or more grounds, such order of detention, as envisaged under Section 10-A of the Act of 1978, shall be deemed to have been made separately on each of such grounds and as a consequence whereof, such an order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, not relevant, not connected or not proximately connected with such person.

9. Section 13 of the Act of 1978 says that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him, in the language which is understandable to him, the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order of detention. However, Subsection (2) of Section 13 emphatically mentions that nothing in subsection (1) of Section 13 shall require the authority to disclose facts which it considers to be against the public interest to disclose.

9.1. Given the Statutory and Constitutional requirements to be followed by respondents in the present case, I thought it apt to again go through the detention record produced by learned counsel for respondents. It comprises of Execution Report as well. Perusal whereof reveals that Shri Parvaiz Ahmad, Inspector no.7833/NGO SHO Police Station Khayar has executed the detention warrant on 8th August 2019. Ten leaves, comprising PSA warrant, grounds of detention, letter addressed to detenu, have been handed over to detenu under proper receipt. It also divulges that detenu has been informed to make a representation against his detention.

9.2. Apropos to make mention here that Article 22 (5) of the Constitution of India casts a dual obligation on the detaining authority, viz.:
(i) To communicate grounds of detention to the detenu at the earliest;
(ii) To afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider and decide the representation when made, as soon as possible.

9.3. The Supreme Court has reiterated that communication means bringing home to detenu effective knowledge of facts and grounds on which order of detention is based. To a person who is not conversant with English language, in order to satisfy requirement of the Constitution, must be given grounds in a language that he can understand and in a script that he can read, if he is a literate person. If a detained person is conversant with English language, he will naturally be in a position to understand gravamen of the charge against him and the facts and circumstances on which order of detention is based. So is the position in the present case.

9.4. The Constitution has guaranteed freedom of movement throughout the territory of India and has laid down detailed rules as to arrest and detention. It has also, by way of limitations upon the freedom of personal liberty, recognised right of the State to legislate for preventive detention, subject to certain safeguards in favour of detained person, as laid down in Clauses (4) & (5) of Article 22. One of those safeguards is that detained person has a right to be communicated the grounds on which order of detention has been made against him, in order that he may be able to make his representation against the order of detention. In the circumstances of instant case, it has been shown that detenu had opportunity, which the law contemplates in his favour, for making an effective representation against his detention. He, however, did not avail of said opportunity.

9.5. In that view of matter, the contentions in the petition on hand that detenu was not furnished the material relied upon by detaining authority to make a representation against his detention while passing impugned detention order, are meretricious.

10. Section 14, that follows Section 13, provides constitution of Advisory Board for the purposes of the Act of 1978, which shall comprise of a Chairman and members. Such a Chairman and members shall be appointed by the Government in consultation with the Chief Justice of the High Court. Section 15 says that in every case, where a detention order has been made under the Act of 1978, the Government shall within four weeks from the date of detention order, place before Advisory Board the grounds on which order of detention has been made; representation, if any, made by person affected by order of detention and in case where order of detention has been made by an officer, also report by such officer under subsection (4) of Section 8. After considering the material placed before the Advisory Board and after calling for such further information as it may deem necessary from the Government or from the person called for the purpose through the Government or from the person concerned and if in any particular case the Advisory Board considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the Government within six weeks from the date of detention.

10.1. In the present case detention record, on its glance, would divulge that Advisory Board vide its order Report dated 29th August 2019, has conveyed that grounds of detention formulated by detaining authority are sufficiently supported by dossier/material and that grounds of detention and other relevant material were furnished to detenu at the time of taking him into detention and that detenu was also informed about his right of making representation against his detention. However, no representation has been made by detenu and, therefore, there is no rebuttal to the grounds of detention formulated by detaining authority. The report of Advisory Board also reveals that all the requirements contemplated under the Act of 1978, have been complied with and no error of law or procedure, which would invalidate the detention, have been committed by detaining authority and as an outcome thereof, the detention is in conformity with the principles as enshrined under Article 22(5) of the Constitution of India and the provisions of the Act of 1978. The Advisory Board has opined that there is sufficient cause for detention of detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.

10.2. By communication no.AB/PSA/2019/282 dated 29th August 2019, the Advisory Board, transmitted its Report pertaining to detenu for further action. The Government, in exercise of powers conferred by Section 17(1) of the Act of 1978, confirmed impugned order of detention and directed lodgement of detenu in Central Jail, Agra, for a period of three months in the first instance. So, there is strict compliance of provisions of Section 14, 15, 16, and 17 of the Act of 1978.

11. Now comes Section 18 of the Act of 1978. Plain reading thereof says that maximum period, upon confirmation of detention order in terms of Section 17, shall be three months in the first instance, extendable up to twelve months. Thus, detention order in the beginning will be for three months and is extendable up to twelve months at the discretion of Government. So, the Government in terms of Section 18 does not require to pass any fresh order of detention. It only makes operation of original detention order longer in time.

11.1. During the course of argumentation of the case, a concerted argument of learned senior counsel for petitioner has been that for extension of detention, no compelling reason comes to fore. In this regard he has also relied upon the judgement of the Division Bench of this Court rendered in the case of Tariq Ahmad Sofi (supra). However, I am not swayed muchless impressed by this submission. The reason being that first of all Section 18 of the Act of 1978 empowers the Government to extend detention of a person, already placed under preventive detention under Section 8 and confirmed under Section 17. Compelling reasons are to be shown and subjective satisfaction arrived at by detaining authority, at the threshold, when it passes order of detention, followed by opinion of Advisory Board inasmuch as opinion of Advisory Board is a clinching moment in the matter of detention.

11.2. Here it is pertinent to mention that Article 22(4) of the Constitution of India is another safeguard provided to a detenu under preventive detention. The Supreme Court in Abdul Latif v. B.K. Jha, (1987) 2 SCC 22, has said that under Article 22(4)(a), preventive detention for over three months is possible only when an Advisory Board holds that, in its opinion, there is sufficient cause for such detention. The Advisory Board must report before the expiry of three months. If the report is not made within three months of the date of detention, the detention would become illegal.

11.3. The Supreme Court in Nandlal v. State of Punjab, (1981) 4 SCC 327, has spelled out the rule that not only the Advisory Board should report within three months of the date of detention that in its opinion there is sufficient cause for detention of detenu, but also the Government should itself confirm and extend the period of detention as failure on the part of the Government to do so will render detention invalid as soon as three months elapse and any subsequent action by the Government cannot have the effect of extending the period of detention beyond three months. The Division Bench in Tariq Ahmad Sofi (supra) has categorically mentioned that provisions of Section 18 of the Act of 1978 confer discretion on the Government whether or not to extend the detention of a detenu beyond initial period of three months, however, such discretion has to be exercised on some kind of satisfaction to be attained by the Government to extend or not to extend the detention period, and for how long. However, such satisfaction would be founded on the opinion of Advisory Board and relatable to grounds of detention already served on the detenu.

11.4. In the present case, Advisory Board has furnished its Report opining disclosure of sufficient cause for detention of detenu with a view to preventing him from acting in any manner prejudicial to maintenance of public order.

11.5. In view of above it is made clear here that this Court cannot go into the question whether on the merits the detaining authority was justified to make the order of detention or to continue it, as if sitting on appeal. Thus, this Court cannot interfere on the ground that in view of the fact that times have changed, further detention would be unjustified. That is for the Government and the Advisory Board to consider. Reference in this regard is made to Bhim Sen v. State of Punjab, AIR 1951 SC 481; Gopalan A.K. v. State of Madras AIR 1950 SC 27; Shibbanlal Saksena v. State of U.P., AIR 1954 SC 17; Hemlata Kantilal Shah v. State of Maharashtra, AIR 1982 SC; Sheoraj Prasad Yadav v. State of Bihar, AIR 1975 SC 1143; and Ram Bali Rajbhar v. State of W.B. AIR 1975 SC 623.

12. Learned senior counsel appearing for petitioner has also stated that the allegations/ grounds of detention are vague and the instances and cases mentioned in grounds of detention have no nexus with detenu and have been manoeuvred by police in order to justify its illegal action of detaining detenu. It is his submission that activities mentioned in grounds of detention pertain to the year 2008 and 2010 and that respondent no.2 has relied upon FIRs registered in the year 2008 and 2010 for detaining detenu, for which detenu had already been detained in the year 2010 and that such material cannot be relied upon for repeating the order of detention. Petitioner states that a mention is made about his activities after death of Burhan Wani in the year 2016, which fact is not correct and that it is a false allegation levelled against detenu inasmuch as these incidents, which have been relied upon by respondent no.2, for passing impugned order of detention are vague, without any material to support the same. The detaining authority is said to have not even mentioned as to what has happened to FIRs relied upon by detaining authority in grounds of detention and as to whether FIRs have been concluded and put to the Court for trial by producing Challan or whether investigation has been concluded or completed by police stations concerned, in these FIRs even after nine years, which would mean that FIRs itself have become stale, so far as connecting detenu with today’s situation is concerned. In support of his submission, learned senior counsel has placed reliance on Chhagan Bhagwan Kahar v. N.L. Kalna and others, (1989) 2 SCC 318; T.B.Abdul Rahaman v. State of Kerala and others, 91989) 4 SCC 741; Thahira Haris Etc v. Government of Karnataka and others, (2009) 11 SCC 438; Sama Aruna v. State of Telangana, (2018) 12 SCC 150.

12.1. To consider above submission, I have gone through grounds of detention. It, inter alia, mentions that detenu believes that Jammu and Kashmir is a disputed territory and it has to be seceded from Union of India and annexed with Pakistan and that role of detenu has remained highly objectionable as he was indicted many times in past for secessionist activities, which can be gauged from the fact that at least four criminal cases have been registered against him and his associates for violating various laws, whose sanctity they are supposed to uphold in highest esteem. It is also mentioned in grounds of detention that detenu used every occasion to propagate secessionist ideology and even allows known secessionist elements to use platform of J&K High Court Bar Association, Srinagar, besides, he has gone to extent of even sponsoring strikes as President Bar Association, thus instigating general public to indulge in activities, which are prejudicial to maintenance of public order and that a number of newspaper reports have also been presented before the detaining authority that substantiate indulgence of detenu in secessionist activities. It is also made mention of that despite holding responsible position of Bar Association, detenu wilfully and actively indulged in unlawful activities and instigated people for violence thereby disturbing public order.

12.2. Mr B. A. Dar, learned Sr. AAG, to rebut the submissions of learned senior counsel for petitioner has, while recapitulating the assertions made in Reply Affidavit filed by respondents, stated that detenu has emerged as one of the most staunch advocate of secessionist ideology propagating in public through his speeches and appeals and that detenu has been involved in various criminal cases inasmuch as detenu has been using platform of J&K Bar Association for promoting and advocating his secessionist ideology and has been sponsoring strikes while instigating general public for indulging in activities prejudicial to maintenance of public order. It is also claimed that detenu has been actively involved in furtherance of his secessionist ideology in the Valley, particularly during agitation of 2008 as also in the agitation at the time of killing of terrorist, Burhan Wani, in 2016, which agitation led to highest magnitude of violence in the Valley, leaving many people dead. Since detenu have had a long history of promoting, propagating and advocating secessionist ideology inasmuch as instigating public wilfully and unlawfully for violence against the government established under law and its functionaries, therefore, detaining authority on careful examination of the entire material furnished to it by all concerned, deemed it expedient, imperative and appropriate to detain detenu under the provisions of the Act of 1978 in terms of order dated 7th August 2019, in that there has been every likelihood and apprehension after Government of India passed law regarding abrogation of Article 370 read with Article 35(A) of the Constitution of India and detenu in view of his secessionist ideology and on account of his past unlawful activities, having been found prejudicial to maintenance of public order, would instigate general public to resort to violence, which would in the process disturb maintenance of public order. Hence detaining authority found it necessary and imperative to invoke relevant provisions of the Act of 1978 and subsequently detain the detenu in order to preclude him from indulging in activities which would be prejudicial to maintenance of public order. He has also insisted that power of preventive detention is a precautionary power exercised in reasonable anticipation and it may or may not relate to an offence. The basis of detention is satisfaction of Executive on a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and prevent him from doing same. It is contended that detenu has been staunch advocate of secessionist ideology instigating public through his speeches, hartal calls and physical participation in strikes aimed at disturbing public order and that detaining authority, therefore, while taking into account past activities of detenu found it imperative and necessary to detain him inasmuch as preventing him from indulging in the said activities not with an object of punishing him for something he has done but to prevent him from doing it. Reference of FIRs in grounds of detention reflects and manifests awareness of detaining authority qua conduct and activities of detenu that he has been indulged in. The order of detention has been passed by detaining authority as a precautionary measure based on a reasonable prognosis of the future behaviour of detenu based on his past conduct in light of surrounding circumstances much probability emerged warrant detention of detenu. Learned counsel, to cement his arguments, has relied upon Borjahan Gorey v. The State of West Bengal, (1972) 2 SCC 550; Debu Mahto v. The State of W.B., AIR 1974 SC 816; State of U.P. v. Durga Prasad, (1975) 3 SCC 210; Ashok Kumar v. Delhi Administration and others, AIR 1982 SC 1143; State of Maharashtra and others v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613; Gautam Jain v. Union of India & anr., 2017 (1) JKLT 1 (SC); Union of India and another v. Dimple Happy Dhakad, AIR 2019 SC 3428.

12.3. In the above backdrop it is mentioned that the purpose of J&K Public Safety Act, 1978, is to prevent the acts and activities prejudicial to security of the State or maintenance of public order. The acts, indulged in by persons, who act in concert with other persons and quite often such activity has national level consequences. These acts are preceded by a good amount of planning and organisation by the set of people fascinated in turmoil. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed, but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention.

12.4. It may not be out of place to mention here that grounds of detention are definite, proximate and free from any ambiguity. Detenu has been informed with sufficient clarity what actually weighed with Detaining Authority while passing detention order. Detaining Authority has narrated facts and figures that made it to exercise its powers under Section 8 of the Act of 1978, and record subjective satisfaction that detenu was required to be placed under preventive detention in order to prevent him from acting in any manner prejudicial to the maintenance of peace and public order.

12.5. In such circumstances, suffice it is to say that there had been material before detaining authority to come to conclusion and hence, it cannot be said that subjective satisfaction of detaining authority was wrongly arrived at or grounds of detention are self-contradictory or vague. The role of detenu has been specifically described.

12.6. Even otherwise it is settled law that this Court in the proceedings under Article 226 of the Constitution has limited scope to scrutinizing whether detention order has been passed on the material placed before it, it cannot go further and examine sufficiency of material. [State of Gujarat v. Adam Kasam Bhaya (1981) 4 SCC 216] . 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. [State of Punjab v. Sukhpal Singh (1990) 1 SCC 35]

12.7. This Court can only examine grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent detenu from engaging in activities prejudicial to security of the State or maintenance of public order. [See:Union of India v. Arvind Shergill (2000) 7 SCC 601; Pebam Ningol Mikoi Devi v. State of Manipura, (2010) 9 SCC; and Subramanian v. State of T.N. (2012) 4 SCC 699 ]

12.8. It may not be inappropriate to mention here that the Supreme Court, in several decisions, has held that even one prejudicial act can be treated as sufficient for forming requisite satisfaction for detaining a person. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order. In this regard the Constitution Bench of the Supreme Court in Haradhan Saha’s case (supra), while considering various facets concerning preventive detention, has observed:

“32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu.

34. The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. State of W.B., Ashim Kumar Ray v. State of W.B.; Abdul Aziz v. District Magistrate, Burdwan and Debu Mahato v. State of W.B. correctly lay down the principles to be followed as to whether a detention order is valid or not. The decision in Biram Chand v. State of U. P., (1974) 4 SCC 573, which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First, merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.”

13. The Supreme Court in the case of Debu Mahato v. State of W.B. (1974) 4 SCC 135, has said that while ordinarily-speaking one act may not be sufficient to form requisite satisfaction, there is no such invariable rule and that in a given case “one act may suffice”. That was a case of wagon-breaking and given the nature of the Act, it was held therein that “one act is sufficient”. The same principle was reiterated in the case of Anil Dely v. State of W.B. (1974) 4 SCC 514. It was only a case of theft of railway signal material. Here too “one act was held to be sufficient”. Similarly, in Israil S K v. District Magistrate of West Dinajpur (1975) 3 SCC 292 and Dharua Kanu v. State of W.B. (1975) 3 SCC 527, single act of theft of telegraph copper wires in huge quantity and removal of railway fish-plates respectively, was held sufficient to sustain the order of detention. In Saraswathi Seshagiri v. State of Kerala (1982) 2 SCC 310, a case arising under a single act, viz. attempt to export a huge amount of Indian currency was held sufficient. In short, the principle appears to be this: “Though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity.” The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon-breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish-plates were held sufficient by the Supreme Court. Similarly, where the person tried to export huge amount of Indian currency to a foreign country in a planned and premeditated manner, as in the present case detenu has been apprehended with arms and ammunition, it was held that such single act warrants an inference that he will repeat his activity in future and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activity.

14. One more submission was taken during course of advancing the arguments that criminal prosecution could not be circumvented or short-circuited by ready resort to preventive detention and power of detention could not be used to subvert, supplant or substitute punitive law of land. It was also urged that no material has been disclosed by detaining authority in grounds of detention to establish existence of any exceptional reasons justifying recourse to preventive detention inasmuch as implication of detenu in criminal offence(s) would suggest that these offences could be dealt with under the provisions of criminal law and if at all detenu would be found involved in the offence(s) after a full dressed trial before criminal court, the law would take its own course, and in the absence of such reasons before detaining authority, it was not competent to detaining authority to make order of detention bypassing criminal prosecution. This argument completely overlooks the fact that the object of making an order of detention is preventive while object of a criminal prosecution is punitive. Even if a criminal prosecution fails and an order of detention is then made, it would not invalidate the order of detention, because, as pointed out by the Supreme Court in Subharta v. State of West Bengal, [1973] 3 S.C.C. 250, “the purpose of preventive detention being different from conviction and punishment and subjective satisfaction being necessary in the former while proof beyond reasonable doubt being necessary in the latter”, the order of detention would not be bad merely because criminal prosecution has failed. It was pointed out by the Supreme Court in that case that “the Act creates in the authority concerned a new jurisdiction to make orders for preventive detention on their subjective satisfaction on grounds of suspicion of commission in future of acts prejudicial to the community in general. This Jurisdiction is different from that of judicial trial in courts for offences and of judicial orders for prevention of offences. Even unsuccessful judicial trial or proceeding would therefore not operate as a bar to a detention order or render it mala fide”. If the failure of criminal prosecution can be no bar to the making of an order of detention, a fortiori the mere fact that a criminal prosecution can be instituted cannot operate as a bar against the making of an order of detention. If an order of detention is made only in order to bypass a criminal prosecution which may be irksome because of inconvenience of proving guilt in a court of law, it would certainly be an abuse of power of preventive detention and detention order would be bad. But if object of making the order of detention is to prevent commission in future of activities, injurious to the community, it would be a perfectly legitimate exercise of power to make the order of detention. The Court would have to consider all the facts and circumstances of the case in order to determine on which side of the line the order of detention falls. The order of detention was plainly and indubitably with a view to preventing detenu from continuing the activities which are prejudicial to the maintenance of public order.

15. In the above milieu, it would be apt to refer to the observations made by the Constitution Bench of the Supreme Court in the case of The State of Bombay v. Atma Ram Shridhar Vaidya AIR 1951 SC 157. The paragraph 5 of the judgement lays law on the point, which is profitable to be reproduced infra:
“5. It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section a of the Preventive Detention Act therefore requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (8) the maintenance of supplies and services essential to the community ….. it is necessary So to do, make an order directing that such person be detained. According to the wording of section 3, therefore, before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government however must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the court to sit in the place of the Central Government or the State Government and try to deter- mine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government.”

16. In the light of aforesaid position of law settled by the Six-Judge Constitution Bench, way back in the year 1951, the scope of looking into the manner in which subjective satisfaction is arrived at by detaining authority, is limited. This Court, while examining the material, which is made basis of subjective satisfaction of detaining authority, would not act as a ‘court of appeal’ and find fault with the satisfaction on the ground that on the basis of material before detaining authority, another view was possible. Resultantly, the judgements cited by learned senior counsel would not offer any assistance to the case set up by petitioner.

17. Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or maintenance of public order, then the liberty of the individual must give way to the larger interest of the nation. These observations have been made by the Supreme Court in The Secretary to Government, Public (Law and Order-F) and another v. Nabila and another (2015) 12 SCC 127.

18. Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand, and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of smuggling and black- marketing activities, etcetera demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life.

19. In considering and interpreting preventive detention laws, the Courts ought to show greatest concern and solitude in upholding and safeguarding the fundamental right of liberty of the citizen, however, without forgetting the historical background in which the necessity— an unhappy necessity—was felt by the makers of the Constitution in incorporating provisions of preventive detention in the Constitution itself. While no doubt it is the duty of the Court to safeguard against any encroachment on the life and liberty of individuals, at the same time the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification. It is well settled that if detaining authority is satisfied that taking into account nature of antecedent activities of detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. [See: State of W.B. v. Ashok Dey, (1972) 1 SCC 199; Bhut Nath Mete v. State of W.B., (1974) 1 SCC 645; ADM v. Shivakant Shukla (1976) 2 SCC 521; A. K. Roy v. Union of India, (1982) 1 SCC 271; Dharmendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746; Kamarunnisa v. Union of India and another, (1991) 1 SCC 128; Veeramani v. State of T.N. (1994) 2 SCC 337; Union of India v. Paul Manickam and another, (2003) 8 SCC 342; and Huidrom Konungjao Singh v. State of Manipur and others, (2012) 7 SCC 181].

20. Observing that the object of preventive detention is not to punish a man for having done something but to intercept and to prevent him from doing so, the Supreme Court in the case of Naresh Kumra Goyal v. Union of India and others, (2005) 8 SCC 276, and ingeminated by the Supreme Court in Dimple Happy Dhakad, (supra), has held that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent antisocial and subversive elements from imperilling welfare of the country or security of the nation or from disturbing public tranquillity or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so.

21. To sum up, 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. 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. The responsibility for security of State, or maintenance of public order, or essential services and supplies, rests on the Executive and it must, therefore, have necessary powers to order preventive detention. Having said that, subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court. 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.

22. For the foregoing discussion, the petition sans any merit and is, accordingly, dismissed.

23. Detention record be returned to learned counsel for respondents.

(Tashi Rabstan)
Judge

Srinagar
07.02.2020

Whether approved for reporting? Yes

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O R D E R

“Judges should be of stern stuff and tough fiber, unbending before power, economic or political, and they must uphold the core principle of the rule of law, which says „Be you ever so high, the law is above you.”
– P.N. Bhagwati, J, in AIR 1982 SC 149 SP Gupta v. Union of India.

I. FACTUAL BACKGROUND
1. Reports are available of proceedings in the suo motu cognizance taken by the Supreme Court of India which proceedings were registered as Suo Motu Writ Petition (Crl) No. 1/2018 entitled In re: Kathua, Jammu and Kashmir. On 13th April, 2018, the Supreme Court directed registration of this suo motu writ petition taking note of information brought to its notice by some lawyers practicing in the Supreme Court that members of the Kathua Court Bar Association, Jammu and Kashmir are obstructing the lawyer who is appearing on behalf of the family of a rape victim in proceedings in court. The Supreme Court noted that there was support from the Jammu and Kashmir High Court Bar Association.
2. In the order recorded on 13th April, 2018, while issuing notice to the Jammu and Kashmir High Court Bar Association amongst others, the Supreme Court had noted thus:
“It is settled in law that a lawyer who appears for a victim or accused cannot be prevented by any Bar Association or group of lawyers, for it is the duty of a lawyer to appear in support of his client, once he accepts the brief. If a lawyer who is engaged, is obstructed from appearing in the court or if his client is deprived of being represented in the court when he is entitled to do so in a lawful manner, that affects the dispensation of justice and interference with the administration of justice. In fact, this Court has held that a Bar Association cannot pass a resolution that they would not defend and accused in any particular case. It is the duty of the Bar Association as a collective body and they cannot obstruct the process of law.
In view of the aforesaid, we issue notice to the Bar Council of India, the State Bar Council, Jammu & Kashmir, the High Court Bar Association at Jammu and the Kathua District Bar Association. The Bar Council of India and the State Bar Council shall be served through the Secretary and as far as the Bar Associations are concerned, they shall be served through the President and the Secretary of the respective Associations. Mr. M. Shoeb Alam, learned Standing Counsel for the State of Jammu & Kashmir is requested to serve copies of the petition on the said authorities.
Additionally, a copy be served on Mr. M.Shoeb Alam to assist the Court on behalf of the State of Jammu & Kashmir.
Dasti, in addition, is permitted.”
(Emphasis supplied)

3. An affidavit dated 24th April, 2018 was filed by Sh. Prem N. Sadotra, General Secretary of the Jammu and Kashmir High Court Bar Assocaition, Jammu in these proceedings wherein in para 14, it is stated as follows:
“14. …….It is submitted that after the cognizance by the Hon‟ble Supreme court, J&K High Court Bar Association Jammu received a letter from the Hon‟ble High Court of J&K as also a request letter from the Bar Council of India. In view of these developments an extra ordinary meeting of the General House of J&K High Court Bar Association Jammu was summoned on April16, 2018. In due deference to the request of Bar Council of India and Hon‟ble J&K High Court and in view of the fact that the Hon‟ble Supreme Court of India was seized of the issue, the General House of J&K high Court Bar Association Jammu decided to resume its work but at the same time continue with the agitation by adopting peaceful and constitutional methods for deportation of Rohingyas and Bangladeshies illegally settled in and around Jammu who are admittedly a security threat and rescinding of the directions issued in terms of a meeting held and 14/02/2018 chaired by the Hon‟ble Chief Minister of J&K State. …”

4. The above deposition is noted to highlight the admission by the Jammu and Kashmir High Court Bar Association that it was conscious of the law as well as the methods of agitation which could be adopted by it.
5. The Jammu and Kashmir High Court Bar Association had also exhibited its awareness that no obstruction or threat could be extended to counsels appearing in a case.
6. However, despite this awareness, to our greatest pain and dismay, several recent events have been brought to our notice which are contrary to the above assurances, which were placed before the Supreme Court of India in Writ Petition (Crl) No. 1/2018.
7. Information has been received from the Registry that on 1st of November, 2019, the Jammu and Kashmir High Court Bar Association had taken a decision to abstain from work in all courts including the High Court, District Courts, Jammu and Kashmir Special Tribunal and Revenue Courts for an indefinite period.
8. With regard to these abstentions, a noting dated 10th December, 2017 has been placed by the Registrar General of this court enclosing a series of reports received from Registrar Judicial of this Court and the Principal District and Sessions Judge, Jammu.
9. Amongst these is the report received from the Principal District and Sessions Judge, Jammu that the main entrance of the District Courts building complex on was blocked 4th November, 2019 by certain striking lawyers. On intervention of the Principal District Judge, the lawyers permitted few under trial prisoners and ladies to enter the Courts complex, but the same was blocked again.
10. The Principal District Judge had to personally remain present at the entry gate on 5th November, 2019 to facilitate entry into the District Courts of lawyers willing to work, appear in courts as also under trial prisoners, litigants and public. However, at 11:30 am on the same day, the main gate was again locked by the striking lawyers. Once again, the Principal District Judge had to intervene and facilitate access into the building to the litigants, staff and public.
As per the report received, very few litigants and under trial prisoners were permitted to enter into the District Court complex. Very few lawyers appeared in urgent bail applications, matters involving stay etc. before noon. However, the main gate was blocked again.
11. On 6th November 2019, the striking lawyers illegally started physically checking identity cards of those who wanted to enter into the Court building. Yet again few staff members, under trial prisoners and some accused were able to enter the Court.
12. As a result of the main gate being locked, the judges, staff and those who were inside the District Courts were confined therein by these striking lawyers.
13. The enquiries made have revealed that the lawyers who had locked the restricted entry and exit into the District Court and who were counselled by the District Judge on the 4th and 5th November 2019 include S. Baldev Singh Nitin Bakshi, Azhar Usman Khan, Mr. Mahinder Singh Palli, Suresh and Rahul, Advocates.

14. This position has subsisted and additional reports dated 14th November 2019 regarding the same position on 8th, 9th, 11th, and 13th November 2019 and a report dated 19th November, 2019 with regard to the position of appearance of accused persons of 14th, 16th and 18th November, 2019 have been received.
15. In the judgment of the Supreme Court reported at (2017) 5 SCC 702 Hussain & Anr. vs. Union of India & Ors.wherein the appellant had been in custody for a long period, the Supreme Court has observed that timely delivery of justice is a part of the human rights. Denial of speedy justice is a
threat to public confidence in the administration of justice. The Supreme Court has noted that successful implementation of the action plans requires disposal of cases of under trials in custody in two years in Sessions trial cases and in six months in magisterial trials cases.
16. It is reported that on the above and other dates as well for the reason that accused persons were prevented entry and/or did not appear in the Courts, the judges had to issue warrants/notices in large number of cases to ensure appearances of the under trials. The Learned Principal District Judge has compiled a report dated 26th November, 2019 from 23 trial courts in this regard.
17. Another aspect repeatedly highlighted in all case management examinations is the time taken and the delays on account of service of accused persons. As a result of the locking of the main gate from 4th November, 2019, these striking lawyers have actually pushed back the criminal justice system in the District Courts, Jammu irretrievably. They have also caused multiplication of the work of the Court, court officials and the police authorities who shall have to use valuable resources and time in attempting to serve those accused persons whose cases were listed on the days the main door of the court was locked and their entry prevented.
18. We are not setting out the impediment and the obstruction caused in the civil justice dispensation system in the District Courts, on account of their locking the main gate. However, it needs no elaboration that consequential delays would be unsurmountable and grave prejudice would have resulted to several litigants who are in dire need of immediate justice.
19. It is noteworthy that some of the most sensitive cases in the country are being tried in the Jammu district courts. From the designated NIA Court alone, information has been received that some extremely sensitive cases involving national security had to be adjourned on account of the aforesaid conduct by these lawyers. For the reason that complete list of cases would make this order extremely unwieldy, we are noticing hereafter some of the critical trials which could not proceed and had to be adjourned on account of contumacious and criminal conduct of the above lawyers.
20. Some of the following old cases which were listed before the Court of 3rd Additional Sessions Judge (Fast Track Court), Jammu, during this period which had to be adjourned in the foregoing circumstances include:

21. Some of the old cases which were listed before the Court of 2nd Additional District & Sessions Judge, Jammu and had to be adjourned:

22. Some of the old civil cases which had to be adjourned pending before the Court of 2nd Additional District Judge, Jammu include:

23. Similar reports have been received from the other courts in the complex.
24. So far as pendency of cases is concerned 46,189 cases are pending in Jammu Wing of the High Court while 39,241 cases are pending in the District Courts at Jammu.
25. The reports received from the Registrar General and Principal District & Sessions Judge, Jammu reflect the number of working days and cases which have had to be adjourned from Ist November 2019 on account of abstentions from work and obstructions by the lawyers.
As a result, cases which are time bound are also being adjourned.
26. It is extremely difficult to set workable action plans for time bound disposal of old cases which is in the teeth of the repeated direction of the Supreme Court of India.
27. The report received from the Principal District & Sessions Judge, Jammu indicates that the protesting lawyers have changed strategy to effect replacement/rotation of those locking the gates. However, S. Baldev Singh, Nitin Bakshi, Azhar Usman Khan and Mahinder Singh Palli, Advocates are spearheading the protestors and have been enforcing the closure along with their associates. Their arrogance is to the extent that they actually put a lock on the main gate and remove its key which was kept in their custody.
28. A representation dated 23rd November 2019 has been received in the Chief Justice‟s Secretariat from Shri Rampaul S/o Shri Sardha Ram complaining about the obstruction to the courts.
29. Reports received from the Registrar Judicial show that an effort to similarly obstruct lawyers and litigants even in the High Court was unsuccessfully attempted by shifting sofas, which are court property, from their assigned places, to be used as barricades at access points within the court. We are informed that these sofas could not be used to completely prevent litigants. However, active measures were attempted to completely obstruct willing lawyers from appearing in the Court.
30. Given the turn of events in other parts of the country, we exercised restraint in the matter hoping that better sense would prevail over the members of the Bar. Unfortunately, this was not to be.
31. Despite the mandate of the law laid down by the Supreme Court, open threats are yielded by unruly elements in the Bar that the Bar Association is a strong one and lawyers would be removed from its membership if they chose to oppose the strike call or appear in courts. The entire justice dispensation system in Jammu has been held to ransom.
32. Conduct of these advocates of locking the District courts and preventing the litigants in civil cases, under trials and lawyers from accessing the courts is a very serious matter and cannot be ignored.
33. The unequivocal, unexceptional and authoritative enunciation of law in the judgments which we are noting hereafter, bind lawyers and all courts. The same are being extracted merely as a reminder that violations of law are working grave injustice to the litigants, they are putting unbearable pressure on the courts which are already stretched and resulting in such delays and judicial arrears which shock our conscience. In fact the turn events as has been placed before us, shows how not only rights guaranteed under Article 21 of the Constitution of India of litigants, prisoners and under trials are being violated, but lives of judges and seekers of justice, court staff officials and visitors to the courts imperiled and safety of court property threatened.

34. John Marshall, J., the Fourth Chief Justice of the Supreme Court of the United States in Cohens v. Virginia, 19 US 264 (1821) has stated as follows:
“It is true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment and consecientiouly to perform our duty.”
We are today again reminded of our duty as judges as stated by John Marshall, J.

35. We are left with no option but to ensure that the violation is dealt with in accordance with the mandate of the law laid down by the Supreme Court of India.

36. Let us briefly consider the position in law on the high position and regard accorded to advocates as well as permissibility and legality of strikes by them.

II. ROLE OF ADVOCATES
37. Lawyers not only have a unique role in the administration of justice but very important duties and obligations as officers of the Court. Significantly, several judicial pronouncements have emphasized the manner in which these must be performed.
38. In the judgment of the Supreme Court reported at (1995) 3 SCC 619 In re Sanjeev Datta, the Supreme Court has stated thus:
“20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen,the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practise it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible.”
(Emphasis supplied)

39. That members of the legal profession have social obligations to discharge was emphasized in (1995) 1 SCC 732, the Indian Council of Legal Aid and Advice vs. Bar Council of India. The Supreme Court has stated as follows:
“It is generally believed that members of the legal profession have certain social obligations, e.g., to render “pro bono publico” service to the poor and the underprivileged. Since the duty of a lawyer is to assist the court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession.”
(Emphasis by us)

40. The following observations of the Supreme Court in (2003) 2 SCC 45 Ex.Capt. Harish Uppal vs. Union of India & Anr. are also extremely pertinent:
“21) It must also be remembered that an Advocate is an officer of the Court and enjoys special status in society. Advocates have obligations and duties to ensure smooth functioning of the Court. They owe a duty to their client. Strikes interfere with administration of justice. They cannot thus disrupt Court proceedings and put interest of their clients in jeopardy. xxxx”.
41. This is the high pedestal on which lawyers stand placed. Lawyers are the leaders of society. Their conduct and what they espouse is what moulds and guides not only new comers to the Bar but also their communities and whole societies. The burden on the shoulders of the members of Bar to ensure that they follow the law and that their conduct is above reproach is therefore heavy. It can brook no compromise under any circumstance.

III. STRIKE OR ABSTENTION FROM WORK BY LAWYERS – WHETHER PERMISSIBLE?
42. Members of the Bar Associations resorting to abstention from or boycotting courts for any reason has been a matter of huge concern for decades together and the subject matter of binding and authoritative judicial pronouncement for almost thirty years. Even though the issue of legality of the call for the boycott or a strike by the lawyers is not res-integra yet in blatant violation of the law, strikes are being resorted to by those who seek its very enforcement before the courts.
43. It is necessary to consider the principles laid down by the Supreme Court on this critical issue.
44 On 17th December 2002, the Supreme Court of India decided Writ Petitions (C) No. 132 of 1988 along-with Nos. 394 of 1993, 821 of 1990, 320 of 1993 and 406 of 2000. This judgment has been reported in (2003) 2 SCC 45 titled Ex. Capt. Harish Uppal vs. Union of India & Anr. wherein the Supreme Court considered the issue of legality of the boycott of courts; the duty of the Bar Council and the Bar Association and the response of the court in the matter of lawyers‟ strike. It is noteworthy that the judgment was the outcome of detailed hearings in which the Bar Council of India, Attorney General for the India, Bar Associations, several members of the Bar including Senior Counsels addressed the court.

45. We find that the Supreme Court of India has noted the submissions of the learned Attorney General in para 9 of the judgment to the effect that strike by lawyers cannot be equated with strikes resorted to by other sections of the society, pointing out the basic difference that members of the legal profession are officers of the Court and by the very nature of that calling, are required to aid and assist in the dispensation of justice. The learned Attorney General had placed the following observations of the Kerela High Court in the judgment reported at AIR 1997 Ker. 291 Bharat Kumar K. Palicha vs. State of Kerela before the Court:
“No political party or organization can claim that it is entitled to paralyse the industry and commerce in the entire State or nation and is entitled to prevent the citizens not in sympathy with its viewpoint,from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the nation.”
(Emphasis by us)
46. The above judgment of the Kerala High Court stands approved by the Supreme Court in (1998) 1 SCC 201 Communist Party of India (M) v. Bharat Kumar, at page 202.
47. Some observations on the contours of the rights of the lawyers to go on protest vis-à-vis the rights of the litigants who have engaged them needs to be made. The Delhi High Court made some pertinent observations in the case reported at AIR 2000 Delhi 266 B. L. Wadehra (Dr.) vs. State (NCT of Delhi) which we may borrow. In para 30 of the pronouncement, the Delhi High Court stated as follows:

“30. In the light of the above-mentioned views expressed by the Supreme Court, lawyers have no right to strike i.e. to abstain from appearing in Court in cases in which they hold vakalat for the parties, even if it is in response to or in compliance with a decision of any association or body of lawyers. In our view, in exercise of the right to protest, a lawyer may refuse to accept new engagements and may even refuse to appear in a case in which he had already been engaged, if he has been duly discharged from the case. But so long as a lawyer holds the vakalat for his client and has not been duly discharged, he has no right to abstain from appearing in Court even on the ground of a strike called by the Bar Association or any other body of lawyers.If he so abstains, he commits a professional misconduct, a breach of professional duty, a breach of contract and also a breach of trust and he will be liable to suffer all the consequences thereof. There is no fundamental right, either under Article 19 or under Article 21 of the Constitution, which permits or authorises a lawyer to abstain from appearing in Court in a case in which he holds the vakalat for a party in that case.On the other hand a litigant has a fundamental right for speedy trial of his case, because, speedy trial, as held by the Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81: (AIR 1979 SC 1360) is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution. Strike by lawyers will infringe the above- mentioned fundamental right of the litigants and such infringement cannot be permitted. Assuming that the lawyers are trying to convey their feelings or sentiments and ideas through the strike in exercise of their fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution, we are of the view that theexercise of the right under Article 19(1)(a) will come to an end when such exercise threatens to infringe the fundamental right of another. Such a limitation is inherent in the exercise of the right under Article 19(1)(a). Hence the lawyers cannot go on strike infringing the fundamental right of the litigants for speedy trial. The right to practise any profession or to carry on any occupation guaranteed by Article 19(1)(g) may include the right to discontinue such profession or occupation but it will not include any right to abstain from appearing in Court while holding a vakalat in the case. Similarly, the exercise of the right to protest by the lawyers cannot be allowed to infract the litigant’s fundamental right for speedy trial or to interfere with the administration of justice.The lawyer has a duty and obligation to cooperate with the Court in the orderly and pure administration of justice. Members of the legal profession have certain social obligations also and the practice of law has a public utility flavour….”

48. The Delhi High Court also extracted the Rules notified by the Bar Council of India regarding the manner in which lawyers will conduct themselves in the following terms:
“30…. According to the Bar Council of India Rules, 1975 “an Advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for a member of the Bar in his non-professional capacity, may still be improper for an Advocate”. It is below the dignity, honour and status of the members of the noble profession of law to organize and participate in strike. It is unprofessional and unethical to do so. In view of the nobility and tradition of the legal profession, the status of the lawyer as an officer of the court and the fiduciary character of the relationship between a lawyer and his client and since strike interferes with the administration of justice and infringes the fundamental right of litigants for speedy trial of their cases, strike by lawyers cannot be approved as an acceptable mode of protest, irrespective of the gravity of the provocation and the genuineness of the cause. xxxx”
(Emphasis supplied)

49. The above conclusions of Delhi High Court stand approved by the Supreme Court of India in para 18 of Ex-Capt. Harish Uppal.
50. After a detailed enunciation of the law, in para 20 of Ex-Capt. Harish Uppal, the Supreme Court has concluded as follows:
“20) Thus the law is already well settled. It is the duty of every Advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend Court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that Courts are under an obligation to hear and decide cases brought before it and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want of confidence in judicial officers it would amount to scandalizing the Courts to undermine its authority and thereby the Advocates will have committed contempt of Court. Lawyers have known, at least since Mahabir Singh’s case (supra) that if they participate in a boycott or a strike, their action is ex-facie bad in view of the declaration of law by this Court. A lawyer’s duty is to boldly ignore a call for strike or boycott of Court/s. Lawyers have also known, at least since Roman Services’ case, that the Advocates would be answerable for the consequences suffered by their clients if the non- appearance was solely on grounds of a strike call.”
(Emphasis by us)

51. Commenting on impact of lawyers strikes, in Ex Capt Harish Uppal, the Supreme Court noted the observations of the celebrated jurist Mr H.M. Seervai as under:
“21. xxxx. Lawyers ought to know that at least as long as lawful redress is available to aggrieved lawyers, there is no justification for lawyers to join in an illegal conspiracy to commit a gross criminal contempt of court, thereby striking at the heart of the liberty conferred on every person by our Constitution. Strike is an attempt to interfere with the administration of justice. The principle is that those who have duties to discharge in a court of justice are protected by the law and are shielded by the law to discharge those duties, the advocates in return have duty to protect the courts. For, once conceded that lawyers are above the law and the law courts, there can be no limit to lawyers taking the law into their hands to paralyse the working of the courts. „In my submission‟, he said that „it is high time that the Supreme Court and the High Court make it clear beyond doubt that they will not tolerate any interference from anybody or authority in the daily administration of justice. For in no other way can the Supreme Court and the High Court maintain the high position and exercise the great powers conferred by the Constitution and the law to do justice without fear or favour, affection or ill-will.‟
52. In para 35) of Ex-Capt. Harish Uppal, the Supreme Court concluded as follows:
35) In conclusion it is held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike.”

(Emphasis by us)

53. Deprecating strikes by lawyers, the concurring judgment by M. B. Shah, J. (for himself and D. M. Dharmadhikari, J.) in Ex-Capt. Harish Uppal, while agreeing with the majority judgment (which has been authored by S.N. Variava, J.) had added as follows:
“For just and unjust cause, strike cannot be justified in the present-day situation. Take strike in any field, it can be easily realized that that weapon does more harm than any justice. Sufferer is the society-public at large.
38. On occasions the result is – violence or excess use of force by the administration. Mostly the target is to damage public properties.
39. Further, strike was a weapon used for getting justice by downtrodden, poor persons or industrial employees who were not having any other method of redressing their grievances.But by any standard, professionals belonging to a noble profession who are considered to be an intelligent class, cannot have any justification for remaining absent from their duty. The law laid down on the subject is succinctly referred to in the judgment rendered by Brother Variava, J.”
(Emphasis by us)

54. In the case reported at (1984) 1 SCC 722, Lt. Col. S. J. Chaudhary v. State (Delhi Administration), the High Court had directed that a criminal trial must go on from day to day. Before the Supreme Court, it was urged that the advocates were not willing to attend court on day to day basis as the trial was likely to be prolonged. It was held by the Supreme Court that it is the duty of every advocate who accepts a brief in a criminal case, to attend the trial day today. It was held that the lawyer would be committing breach of professional duties if he failed to do so.

55. In furtherance of the above, in the judgment of the Supreme Court reported at 2018 SCC Online 304, Krishnakant Tamrakar vs. State of M.P, the Supreme Court has very recently directed as follows:

“51. Since the strikes are in violation of law laid down by this Court, the same amount to contempt and at least the office bearers of the associations who give call for the strikes cannot disown their liability for contempt. Every resolution to go on strike and abstain from work is per se contempt. Even if proceedings are not initiated individually against such contemnors by the court concerned or by the Bar Council concerned for the misconduct, it is necessary to provide for some mechanism to enforce the law laid down by this Court, pending a legislation to remedy the situation.

52. Accordingly, we consider it necessary, with a view to enforce fundamental right of speedy access to justice under Articles 14 and 21 and law laid by this Court, to direct the Ministry of Law and Justice to present at least a quarterly report on strikes/abstaining from work, loss caused and action proposed. The matter can thereafter be considered in its contempt or inherent jurisdiction of this Court. The Court may, having regard to the fact situation, hold that the office bearers of the Bar Association/Bar Council who passed the resolution for strike or abstaining from work, are liable to be restrained from appearing before any court for a specified period or until such time as they purge themselves of contempt to the satisfaction of the Chief Justice of the concerned High Court based on an appropriate undertaking/conditions. They may also be liable to be removed from the position of office bearers of the Bar Association forthwith until the Chief Justice of the concerned High Court so permits on an appropriate undertaking being filed by them. This may be in addition to any other action that may be taken for the said illegal acts of obstructing access to justice. The matter may also be considered by this Court on receipt of a report from the High Courts in this regard. This does not debar report/petition from any other source even before the end of a quarter, if situation so warrants.”

56. The court summed up its conclusions in para 53 of the Krishnakant Tamrakar. The relevant conclusions in para 53 (iv) are extracted hereunder:

“53. xxxx Pending legislative measures to check the malady of frequent uncalled for strikes obstructing access to justice, the Ministry of Law and Justice may compile information and present a quarterly report on strikes/abstaining from work, loss caused and action proposed. The matter can thereafter be considered in the contempt or inherent jurisdiction of this Court. The Court may direct having regard to a fact situation, that the office bearers of the Bar Association/Bar Council who passed the resolution for strikes or abstaining from work or took other steps in that direction are liable to be restrained from appearing before any court for a specified period or till they purge themselves of contempt to the satisfaction of the Chief Justice of the concerned High Court based on an appropriate undertaking/conditions.They may also be liable to be removed from the position of office bearers of the Bar Association forthwith until the Chief Justice of the concerned High Court so permits on an appropriate undertaking being filed by them. This may be in addition to any other action that may be taken for the said illegal acts of obstructing access to justice. The matter may also declaring that lawyers have no right to abstain from appearing in cases in which they have been engaged or in which they hold vakalatnama and that lawyers have no right to go on strike, bind every lawyer in the country. These principles bind the Jammu & Kashmir High Court Bar Association, all District Court Bar Associations and every lawyer in the Union Territory of Jammu & Kashmir as well in the Union Territory of Ladakh.

IV. PERMISSIBLE FORM OF PROTEST BY LAWYERS

58. The Supreme Court has also ruled on the contours of the only permissible form of protest by lawyers in para 35 of Ex.Capt. Harish Uppal in the following terms:
“35. ………The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from Court premises, going on dharnas or relay fasts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot not attend Courts in pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore, in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocate decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him.”
(Emphasis by us)
59. Lawyers must conduct themselves as above. Nothing more is permissible or tolerable.
60. The Supreme Court has unequivocally declared that it is only “in the rarest of rare cases”, “where the dignity, integrity and independence of the Bar and/or the Bench are at stake, courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day”
61. So far as the form which the protest can take is concerned, the Supreme Court has clearly stated that lawyers must appear in all cases in which they stand engaged and cannot abstain from court appearance under any circumstance. The protest can only “outside and away from court premises”. It can only be in the form of “giving press statements, TV interviews, carrying of banners and/or placards, wearing black or white or any colour arm bands, peaceful protest marches, going on dharnas or relay fasts etc”.
62. The Supreme Court (in Ex Capt Harish Uppal) approved the conclusions of the Division Bench of Delhi High Court in Dr. B. L. Wadehra that “Lawyers should adopt other modes of protest which will not interrupt or disrupt court proceedings or adversely affect the interest of the litigant. Thereby lawyers can also set an example to other sections of the society in the matter of protest and agitations.”

63. The afore noticed affidavit dated 24th April 2018 in the Suo Motu Writ Petition (Crl.) No. 1/2018 clearly manifests that the J&K High Court Bar Association is cognisant of the above binding enunciation of the law.

V. BOYCOTT OF A PARTICULAR COURT/ JUDGE/ FORUM IS NOT PERMISSIBLE – IT TANTAMOUNTS TO OBSTRUCTION OF JUDICIAL PROCESS.

64. There are instances when the Bar Associations have passed a resolution to boycott a particular court or judge. Even this action has been deprecated and has been the subject matter of binding adjudication by the Supreme Court. In (1999) 1 SCC 37 Mahabir Prasad Singh vs. Jacks Aviation Private Limited, an application was made to the trial court to suo- motu transfer the case to some other court as the concerned Bar Association had passed a resolution to boycott that court. For this reason, it was urged that the lawyers could not appear before that Court. The trial court rejected the application. In the revision petition, the High Court stayed the proceedings before the trial court. The Supreme Court held that the trial court had rightly rejected the application and that the High Court had committed a grave error in entertaining the revision petition and passing an order of stay. Following the ratio of the judgment in the case reported at (1984) 1 SCC 722, Lt. Col. S.J. Chaudhary v. State (Delhi Administration), the Supreme Court held as follows:-

“15. This is not a case where the respondent was prevented by the Additional District Judge from addressing oral arguments, but the respondent’s counsel prevented the Additional District Judge from hearing his oral arguments on the stated cause that he decided to boycott that Court for ever as the Delhi Bar Association took such a decision. Here the counsel did not want a case to be decided by that Court. By such conduct, the counsel prevented the judicial process to have flowed on its even course. The respondent has no justification to approach the High Court as it was the respondent who contributed to such a situation.

16. If any counsel does not want to appear in a particular court, that too for justifiable reasons, professional decorum and etiquette require him to give up his engagement in that court so that the party can engage another counsel. But retaining the brief of his client and at the same time abstaining from appearing in that court, that too not on any particular day on account of some personal inconvenience of the counsel but as a permanent feature, is unprofessional as also unbecoming of the status of an advocate. No Court is obliged to adjourn a cause because of the strike call given by any association of advocates or a decision to boycott the courts either in general or any particular court. It is the solemn duty of every court to proceed with the judicial business during court hours. No court should yield to pressure tactics or boycott calls or any kind of browbeating.”

(Emphasis by us)

65. The Supreme Court has even ruled against the strikes by lawyers to pressurize the State Government to withdraw all powers from a statutory
authority from discharging quasi-judicial functions and transferring cases before the officer to any other officer. In the case reported at (1995) 5 SCC 716, U.P. Sales Tax Service Association vs. Taxation Bar Association,the issue before the Supreme Court was whether the High Court could issue a writ or direction prohibiting a statutory authority from discharging quasi judicial functions i.e. direct the State Government to withdraw all powers from it and transfer all pending cases before the officer to any other officer and whether advocates would be justified to go on strike as a pressure group. On this question, the Supreme Court held as follows:

“11. It is fundamental that if rule of law is to have any meaning and content, the authority of the court or a statutory authority and the confidence of the public in them should not be allowed to be shaken, diluted or undermined. The courts of justice and all tribunals exercising judicial functions from the highest to the lowest are by their constitution entrusted with functions directly connected with the administration of justice. It is that expectation and confidence of all those, who have or arelikely to have business in that court or tribunal, which should be maintained so that the court/tribunal perform all their functions on a higher level of rectitude without fear or favour, affection or ill-will. Casting defamatory aspersions upon the character, ability or integrity of the judge/ judicial officer/authority undermines the dignity of the court/authority and tends to create distrust in the popular mind and impedes the confidence of the people in the courts/tribunals which is of prime importance to the litigants in the protection of their rights and liberties. The protection to the judges/judicial officer/authority is not personal but accorded to protect the institution of the judiciary from undermining the public confidence in the efficacy of judicial process. The protection, therefore, is for fearless curial process. Any scurrilous, offensive, intimidatory or malicious attack on the judicial officer/authority beyond condonable limits, amounts to scandalising the court/tribunal amenable to not only conviction for its contempt but also liable to libel or defamation and damages personally or group libel. Maintenance of dignity of the court/judicial officer or quasi- judicial authority is, therefore, one of the cardinal principles of rule of law embedded in judicial review. Any uncalled-for statement or allegation against the judicial officer/statutory authorities, casting aspersions of court’s integrity or corruption would justify initiation of appropriate action for scandalising the court or tribunal or vindication of authority or majesty of the court/tribunal. The accusation of the judicial officer or authority or arbitrary and corrupt conduct undermines their authority and rudely shakes them and the public confidence in proper dispensation of justice. It is of necessity to protect dignity or authority of the judicial officer to maintain the stream of justice pure and unobstructed. The judicial officer/authority needs protection personally. Therefore, making wild allegations of corruption against the presiding officer amounts to scandalising the court/statutory authority. Imputation of motives of corruption to the judicial officer/authority by any person or group of persons is a serious inroad into the efficacy of judicial process and threat to judicial independence and needs to be dealt with the strong arm of law.”

(Emphasis by us)

66. Despite such clear position in law, it is unfortunate that we have witnessed such boycotts in this court. We have so far exercised great restraint.

VI. OBSTRUCTING ACCESS TO COURTS- EFFECT THEREOF

67. Well settled principles of law regarding the working of the legal profession are expected to be followed by the members of the Bar who seek enforcement of the law. When this does not happen, the confidence of the public in the legal profession is shaken. Even more serious is the impact of their conduct on the administration of justice. Unfortunately, strikes and boycott calls have attained unruly and violent proportions holding the entire judicial system to ransom. As a result, the administration of law and justice is threatened. The Supreme Court has held that as a result, “the rule of law is undermined” (para 22 of Ex-Capt. Harish Uppal).
68. It has been observed that the nature of the protest by lawyers unfortunately also sees destruction of public property.
69. We find that in the judgment of the Delhi High Court reported at AIR 2000 Delhi 266 B. L. Wadehra (Dr.) vs. State (NCT of Delhi), the Court had observed as follows:-
“32. Either in the name of a strike or otherwise, no lawyer has any right to obstruct or prevent another lawyer from discharging his professional duty of appearing in Court. If anyone does it, he commits a criminal offence and interferes with the administration of justice and commits contempt of Court and he is liable to be proceeded against on all these counts.”
(Emphasis supplied)

70. The above observations of the Delhi High Court stand approved by the Supreme Court in para 18 of Ex-Capt. Harish Uppal, when it has been held that “the conclusions reached by the Delhi High Court as above are absolutely correct and the same needs to be and are hereby approved”.

71. Therefore a lawyer obstructing or preventing another lawyer from appearing in the court commits a criminal offence. His act tantamounts to interference with the administration of justice and by his obstruction he has also committed contempt of court. Such lawyer has rendered himself liable to be proceeded against for both.

VII. WHETHER ANY LIABILITY FOR A LAWYERS‟ STRIKE ENURES UNDER THE ADVOCATES ACT, 1961

72. Is there any legislation, delegated or otherwise, which envisages any action for conduct declared to be illegal by the Supreme Court ? We now examine this critical aspect. .
73. In Ex.Capt. Harish Uppal, Justice M. B. Shah, J. in his concurring judgment (para 45 of the report) directed that “appropriate rules are required to be framed by the High Courts under Section 34 of the Advocates Act by making it clear that strike by advocate/advocates would be considered interference with the administration of justice and advocate/advocates concerned may be barred from practicing before courts in a District or in the High Court”.
74. Pursuant to the aforesaid direction of the Supreme Court of India, the High Court of Jammu and Kashmir has framed the Jammu and Kashmir Advocates (Regulation of Practice in the High Court and Subordinate Courts) Rules, 2003. („Advocates Rules‟ hereafter)
75. Significantly Rule 4 of the Advocates Rules prohibits advocates, individually or jointly, from giving a call for strike, abstention from Court or boycott of judicial proceedings. This rule reads as under:-
“4. Prohibition against giving a call for strike or boycott of Judicial Proceedings.
No Advocate individually or jointly with other Advocates, Group of Advocates or any Association shall give a call for a strike, abstention from court or boycott of Judicial Proceedings.”
76. Under these Rules, even calling of a meeting for considering a matter regarding a call for strike is prohibited. Rules 5, 6 and 7 which are also relevant in this regard read thus:
“5. Prohibition against requisitioning meeting of Bar Association/Council.
No Advocate individually or joint with other Advocates, Group of Advocates or any Association shall requisition meeting of Bar Association, Bar Council or any Group of Advocates to consider call for a strike, abstention from court(s) or boycott of Judicial Proceedings.
6. „Committee of Bar‟ not to call meeting of the Association/Council to consider call for strike
A Bar Association/Bar counsel or „Committee of Bar‟ shall not entertain or act upon any requisition for a meeting received from one or more members of the Bar Association/Bar Council to consider call for strike, abstention from court work or boycott of Judicial Proceedings and shall refrain from calling such a meeting on its own or on such a requisition.
7. The advocates not to go on Strike.
Save as otherwise provided in these Rules, no Advocate individually, as part of a group of Advocates or a member of an Association shall go on strike, abstain from work or boycott the Judicial Proceedings whether in pursuance or otherwise of a call given for strike, abstention from court work or boycott of Judicial Proceedings.”

77. For contravening the provisions of Rules 4, 5, 6 and 7 of these rules, penalty is provided under Rule 10 and 11 of the Advocates Rules which, for expediency, are extracted hereunder:
Penalty for Contravention of Rules 4, 5 & 6.
10. An Advocate or a member of „Committee of Bar‟ contravening the provisions laid down in Rules 4, 5 & 6 may be debarred for appearing, pleading and conducting cases in the High Court and/or Subordinate Courts for a period not less than one year but not exceeding five years.
11. An advocate or a member of „Committee of Bar‟ contravening Rule(s) 7 and 9 may be debarred from appearing, pleading and conducting cases in the High Court and/or Subordinate Courts for a period not less than 2 years but not exceeding seven years.”

78. Unfortunately, these rules have remained in the rule book without being worked or applied in the event of contraventions.
The result is the terrible situation that we are faced with today.

VIII. RESPONSIBILITY OF THE COURT WHEN COUNSEL FOR BOTH SIDES ARE ABSENT BECAUSE OF A STRIKE CALL
79. A very precarious situation arises when lawyers abstain from working in response to a strike call by the Bar Association. In the judgment delivered by the Supreme Court in the case reported at (1998) 8 SCC 624 K. John Koshy vs. Dr. Tarakeshwar Prasad Shaw, the Supreme Court was considering the challenge to the validity of an order passed when lawyers were on strike and held that the court should not refuse to hear the matter, as, otherwise, it would tantamount to the court becoming a privy to the suit to the strike. The observations of the Supreme Court shed valuable guidance on issue under consideration and deserve to be considered in extenso. It was observed thus:
“We do not propose to express any opinion in regard to the merits of the case nor do we desire to dwell on events preceding the making of the order dated 13-3-1995, We also do not desire to say anything on the question whether circumstances did or did not exist for making the order of 13-3-1995. It is an admitted fact that since the members of the Calcutta Bar were on strike, the counsel for both sides were absent and hence the Court passed the order after hearing the respondent. If the matter was urgent and the respondent who was present in person insisted on being heard and orders being passed on his application as his career was at stake, could the Court refuse to take up his application for hearing and refuse to pass an appropriate order on merits? The answer must obviously be in the negative because to do so would tantamount to the Court becoming privy to the strike. The court is under an obligation to hear and decide cases brought before it and cannot shirk that obligation on the ground that the advocates are on strike. Therefore, the Division Bench was fully justified in proceeding to hear the respondent and in passing orders on merits. We must also mention that at the relevant point of time, the interim order passed by this Court in the Common Cause, A Regd. Society v. Union of India, pending in this Court against lawyers proceeding on strike was in force whereunder the Bar Associations were precluded from dismembering any member of the Bar who appeared in court despite the strike call. Under the circumstances the fear of being debarred from membership also did not exist. We are, therefore, of the opinion that despite the same if counsel did not appear, they are only to blame. The Court in the circumstances did the right thing to proceed to hear the case.”

80. In (2000) 4 SCC 465 Koluttumottil Razak vs. State of Kerela, counsel had not appeared in the Court as advocates had called for a strike. As the appellant was languishing in jail, the Supreme Court held that the adjournment would not be justified. The court felt that it was its duty to look into the matter itself.
81. Appeals were filed before the Supreme Court of India against denial of bails by trial and appellate courts in cases where the trials/appeals of the appellants were pending and the appellants had been in custody for a long period. In the judgment of the Supreme Court reported at (2017) 5 SCC 702 Hussain & Anr. vs. Union of India, adverting to the principles laid down by the Court in the judgments delivered as back as in 1980 in the case reported at (1980) 1 SCC 81 Hussainara Khatoon vs. Home Secretary, State of Bihar with regard to speedy trial being a part of a reasonable, fair and just procedure guaranteed under Article 21 as well as grant of bail pending appeal in (2001) 4 SCC 355 Akhtari Bi v. State of MP. and (2005) 7 SCC 387 Surinder Singh vs. State of Punjab, the Supreme Court had observed as follows:

“12. Timely delivery of justice is a part of human rights. Denial of speedy justice is a threat to public confidence in the administration of justice. Directions of this Court in Noor Mohammed v. Jethanand and Anr. are as follows:

“34. …… Therefore, we request the learned Chief Justice of the High Court of Rajasthan as well as the other learned Chief Justices to conceive and adopt a mechanism, regard being had to the priority of cases, to avoid such inordinate delays in matters which can really be dealt with in an expeditious manner. Putting a step forward is a step towards the destination. A sensible individual inspiration and a committed collective endeavour would indubitably help in this regard. Neither less, nor more.”

13. In Thana Singh v. Central Bureau of Narcotics this Court directed that liberal adjournments must be avoided and witnesses once produced must be examined on consecutive dates. Directions were also issued for setting up of sufficient laboratories, for disposal of seized narcotics drugs and for providing charge-sheets and other documents in electronic form in addition to hard copies of same to avoid delay.

14. In Akhtari Bi (supra) this Court observed as under: “5. … … …it is incumbent upon the High Courts to find ways and means by taking steps to ensure the disposal of criminal appeals, particularly such appeals where the accused are in jails, that the matters are disposed of within the specified period not exceeding 5 years in any case. Regular Benches to deal with the criminal cases can be set up where such appeals be listed for final disposal. We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the court. In computing the period of 5 years, the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them. We request the Chief Justices of the High Courts, where the criminal cases are pending for more than 5 years to take immediate effective steps for their disposal by constituting regular and special Benches for that purpose.”

15. Again in Imtiyaz Ahmad v. State of Uttar Pradesh and Ors. it was observed that long delay has the effect of blatant violation of rule of law and adverse impact on access to justice which is a fundamental right. Denial of this right undermines public confidence in justice delivery. These observations have been reiterated in recent Constitution Bench judgment in Anita Kushwaha etc. etc. v. Pushap Sudan etc. etc. In the said judgment it was noticed that providing effective adjudicatory mechanism, reasonably accessible and speedy, was part of access to justice.”
(Emphasis supplied

82. Extremely pertinent observations having been made by the Supreme Court on the question as to whether a litigant should suffer a penalty because his advocate had boycotted the court pursuant to a strike call made by the Association of which the advocate was a member. The Supreme Court has also ruled on the liability of the lawyer for the loss suffered by the litigant in such circumstances.
In the judgment reported at (2001) 1 SCC 118 Ramon Services Private Limited vs. Subhash Kapoor, it was held that when an advocate engaged by a party is on strike, there is no obligation on the part of the Court to “either wait or adjourn the case on that account”. It was held that this Court has time and again set out that an advocate has no right to stall court
proceedings on the ground that they have decided to go on strike. It had been so held in the case reported at (1999) 1 SCC 37 Mahabir Prasad Singh vs. Jacks Aviation Private Limited referred to earlier.
83. In Ramon Services Private Ltd, the Supreme Court had therefore directed that the advocate concerned should pay the half amount of the cost imposed on his client on account of the adjournment necessitated by a lawyers strike. The observations of the Court putting the profession to notice in para 15 of Ramon Services Private Limited, are extremely pertinent and read as follows:
“15. Therefore, we permit the appellant to realise half of the said amount of Rs. 5000 from the firm of advocates M/s B.C. Das Gupta & Co. or from any one of its partners. Initially we thought that the appellant could be permitted to realise the whole amount from the said firm of advocates. However, we are inclined to save the firm from bearing the costs partially since the Supreme Court is adopting such a measure for the first time and the counsel would not have been conscious of such a consequence befalling them. Nonetheless we put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the party if the non-appearance was solely on the ground of a strike call. It is unjust and inequitable to cause the party alone to suffer for the self- imposed dereliction of his advocate. We may further add that the litigant who suffers entirely on account of his advocate’s non-appearance in court, has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in situations like this, when the court mulcts the party with costs for the failure of his advocate to appear, we make it clear that the same court has power to permit the party to realise the costs from the advocate concerned. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justifiable cause the court can certainly absolve him from such a liability. But the advocate cannot get absolved merely on the ground that he did not attend the court as he or his association was on a strike. If any advocate claims that his right to strike must be without any loss to him but the loss must only be for his innocent client such a claim is repugnant to any principle of fair play and canons of ethics. So when he opts to strike work or boycott the court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate.”
(Emphasis by us)

84. All courts in Jammu and Kashmir as well as Ladakh are bound by the mandate of the above law and have to apply the same. We have no option to follow the principles as above.
85. It is noteworthy that the Supreme Court has also given guidance on the manner in which condolence references by courts sought to be held. To effectuate the entitlement of the fundamental right under Article 21 of persons in custody, in Hussain & Anr. v. Union of India, the Supreme Court of India has deprecated the practice of obstructing court proceedings by uncalled for strikes/abstaining of work by lawyers or frequent suspension of court work after condolence references observing as follows:
“27. One other aspect pointed out is the obstruction of Court proceedings by uncalled for strikes/abstaining of work by lawyers or frequent suspension of court work after condolence references. In view of judgment of this Court in Ex. Captain Harish Uppal versus Union of India, such suspension of work or strikes are clearly illegal and it is high time that the legal fraternity realizes its duty to the society which is the foremost. Condolence references can be once in while periodically say once in two/three months and not frequently. Hardship faced by witnesses if their evidence is not recorded on the day they are summoned or impact of delay on under trials in custody on account of such avoidable interruptions of court proceedings is a matter of concern for any responsible body of professionals and they must take appropriate steps. In any case, this needs attention of all concerned authorities–the Central Government/State Governments/BarCouncils/Bar Associations as well as the High Courts and ways and means ought to be found out to tackle this menace. Consistent with the above judgment, the High Courts must monitor this aspect strictly and take stringent measures as may be required in the interests of administration of justice.”

28. Judicial service as well as legal service are not like any other services. They are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time. Chief Justices and Chief Ministers have resolved that all cases must be disposed of within five years which by any standard is quite a long time for a case to be decided in the first court. Decision of cases of undertrials in custody is one of the priority areas. There are obstructions at every level in enforcement of right of speedy trial – vested interests or unscrupulous elements try to delay the proceedings. xxxxxx”

(Emphasis by us)

86. The practice in this court of holding repeated condonence references would therefore be contrary to the mandate of the directions of the Supreme Court of India.

87. We find that full court references are held in this court irrespective of whether the lawyer who has demised ever practised in the High Court or did not have an active practice in this court.
Our oral missives on this count have evoked no response.

IX. ROLE OF SENIOR COUNSEL

88. Despite the afore noticed judicial pronouncements of the highest court of the land dating back from 1980, this court is seeing a unique form of protest. Information has been received that even senior counsel have given public calls by provocative speeches, incitory messages on the social media, invoking lawyers to boycott work and incting protests, dharnas in public spaces as also spearheading and encouraging sloganeering within the court premises leading to disruption of the work of this court and also district courts in Jammu and neighbouring districts. This information shall be verified and action shall be taken thereon.
89. A practice came into existence in the United Kingdom of appointment of Queens Counsel to assist other Crown Law Officers. It was an office conferred by the Crown that was recognized by the Courts. Such members had the special privileges of wearing distinctive uniforms; a formal right to address the court with preference and sitting in a particular area in the court. The conferment of the office was recognized as honorific. Significantly, appointments were made on the basis of merit and eminence. Over a period of time, similar practices came to be adopted in other jurisdictions (including India) as well in recognition of the excellence, high professional standing and personal integrity of counsels.
90. In India, the Legal Practitioners Act was enacted in 1879 defining „legal practitioners‟ to mean an advocate, vakil, attorney of any high court, a pleader, a mukhtar, a revenue agent. The Indian Bar Councils Act, 1926 was then passed to unify various grades of legal practice and to provide autonomy to the Bar.
91. So far as recognition and designation in Indian advocates is concerned, the same has also been the subject matter of authoritative judicial pronouncement by the Supreme Court in the judgment dated 12th October, 2017 in Writ Petition Civil No. 454 of 2015 Ms Indira Jaising vs. Supreme Court of India. In para 15, the Supreme Court has noted that prior to the coming into force of the Advocates Act, 1961, designation as a senior advocate was a matter of choice for any advocate, who had completed ten years of practice and who was otherwise willing to abide by certain conditions, including not to directly deal with clients or file papers and documents in the courts etc. Designations, which were exclusively dealt with by the Bar, came to be vested in the Supreme Court with the enactment of the Supreme Court Rules 1966. Similar was earlier the position in the Bombay High Court.
92. The enactment of the Advocates Act, 1961 brought a change in the scenario. Section 16 of this enactment statutorily entrusted the task of designation of Senior Advocates to the Supreme Court of India. Under the Supreme Court Rules, Rule 2 of Order IV and its sub-rules delineates the qualities to be possessed by an advocate for designation as also prescribes the contours within which a senior advocate would function.
93. The Rule 2 of Order IV of the Supreme Court Rules, 2013 and its sub-rules may also be seen at this stage:
“2(a) The Chief Justice and the Judges may, with the consent of the advocate, designate an advocate as senior advocate if in their opinion by virtue of his ability, standing at the Bar or special knowledge or experience in law the said advocate is deserving of such distinction.
(b) A senior advocate shall not-
(i) file a vakalatnama or act in any Court or Tribunal in India;
(ii) appear without an advocate-on-record in the Court or without a junior in any other Court or Tribunal in India;
(iii) accept instructions to draw pleadings or affidavit, advise on evidence or do any drafting work of an analogous kind in any Court or Tribunal in India or undertake conveyancing work of any kind whatsoever but this prohibition shall not extend to settling any such matter as aforesaid in consultation with a junior;
(iv) accept directly from a client any brief or instructions to appear in any Court or Tribunal in India. Explanation:-
In this order-
(i) „acting‟ means filing an appearance or any pleadings or applications in any Court or Tribunal in India, or any act (other than pleading) required or authorized by law to be done by a party in such Court or Tribunal either in person or by his recognized agent or by an advocate or attorney on his behalf.
(ii) „tribunal‟ includes any authority or person legally authorized to take evidence and before whom advocates are, by or under any law for the time being in force, entitled to practice.
(iii) „junior‟ means an advocate other than a senior advocate.
(c) Upon an advocate being designated as a senior advocate, the Registrar shall communicate to all the High Courts and the Secretary to the Bar Council of India and the Secretary of the State Bar Council concerned the name of the said Advocate and the date on which he was so designated.”
94. Senior advocates are expected to promote the highest standards of advocacy and assistance in maintaining the rule of law in the legal system.
95. So far as the High Courts were concerned, no uniform criteria or yardstick was followed and the position varied from court to court. However, the qualities entitling a lawyer to designation were the same as above. As does the manner in which the designated senior lawyers must conduct themselves and the restrictions on their activities.
96. In Indira Jaisingh, the Supreme Court has laid down the essentialities and the procedure to be followed by all High Courts regarding designation.
97. In the above judgment, the Supreme Court has observed that “the designation of senior advocate is hardly a title. It is a distinction; a recognition”.
98. Pursuant to the judgment dated 12th October 2017, in Indira Jaisingh, this court vide Notification No. 33 dated 25.04.2018 framed the “Criteria for Designating Senior Advocates, 2018”, which were subsequently amended vide Notification No. 846 dated 01.10.2019 in this regard prescribing as follows:
“2 – Eligibility Conditions:-
(a) An Advocate shall be eligible to be designated as a Senior Advocate, if he/she:
(i) has attained the position of eminence at the Bar;
(ii) possesses ability, legal acumen, special knowledge or distinction and reputation achieved in practice of law;
(iii) is ordinarily practicing in the High Court of Jammu and Kashmir for not less than ten years preceding the date of consideration of his/her case for designation as a Senior Advocate;
(iv) has been assisting the Court in administration of Justice maintaining high ethical standards, both inside and outside the Court expected of a Senior Advocates;
(v) has furnished at least 15 judgments, in the preceding five years, where he has contributed to the growth of law;
(Emphasis supplied)
99. The High Court of Delhi had occasion to deal with certain issues relating to the conduct of amongst others, two senior counsels in a Division Bench judgment reported at 2008 (105) DRJ 557, Court On Its Own Motion vs. State &Ors. In this judgment dated 21st August, 2008, it was observed in para 240 that “we are dealing seniors, who are expected to conduct themselves as gentleman and role models for younger members of the Bar”.
100. Senior counsels are men of eminence and high standing ability fully aware of the law. They would know the law laid down by the Supreme Court of India in the judgment as above.
101. Our experience in our law practices before elevation, as also the prevalent practice in the courts in Punjab & Haryana as also Delhi, has shown that district court and trial practices are unique, requiring expertise which is different from the skills required for conducting appellate and writ work in the High Court. District Courts have their independent strong Bar associations led by the stalwarts practising in the trial courts and concerned with issues relating to the trial courts. We understand that this is the position in all other parts of the country as well.
102. It has been our experience at the Bar as well that registration of documents did not entail any judicial intervention and only very young lawyers at the inception/beginning of their careers are known to facilitate parties in this work. We have not experienced designated senior counsels visiting offices of Registrar/Sub Registrars of documents.
103. Senior advocates are expected to lead the younger members of the Bar by example, so far as following law is concerned. Therefore, use of social media to incite young advocates and members of the Bar into abstaining from work; boycotting court(s); leading sloganeering within the premises of the Court; locking courts etc. by any senior counsel would not be acceptable conduct from persons who have been honored by the High Court in awarding them the special status of senior advocates.
104. So far as licenced advocates are concerned, in the aforesaid judgments, the Supreme Court has held that such conduct tantamounts to criminal contempt of court as well as professional misconduct.
105. Two senior advocates were found guilty of criminal contempt by the Division Bench comprising of Manmohan Sarin, J and Madan B. Lokur, J (as His Lordship then was) in the judgment in 2008 (105) DRJ 557, Court On Its Own Motion vs. State & Ors. Amongst the punishments awarded, the Division Bench held that on account of their conduct, they had forfeited the right to enjoy the honour conferred on them by this Court of being designated as senior advocates. The Division Bench recommended to the Full Court to strip them of their designation as such. The Full Court accepted such recommendation.

106. We extract Rule 8 of the above “Criteria for Designating Senior Counsel” framed by this court in this regard which reads as follows:
“(8) Withdrawal of designation of Senior Advocate by the Court in the event of violation of rules:
In the event a Senior Advocate is guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to continue to be worthy of the designation, the Full Court may review its decision to designate the concerned person and recall the same, after complying with principles of natural justice.”

107. Therefore in case, it is verified before us that any person has conducted in a manner unbecoming of the honour bestowed on them, review in terms of Rule 8 may be warranted and similar orders may be warranted.

>X. FURTHER CONSIDERATION BY THE SUPREME COURT

108. In Writ petition (Criminal) Dairy No. 18239/2018 Afshan Pracha vs. Union of India and others, the Supreme Court has come down heavily on obstructions caused by the Members of the Bar to the petitioner and by an interim order dated 9th of May 2018, prohibited the Bar Association of Tis Hazari Court in Delhi from “going on strike or participating in any kind of boycott of any court in Tis Hazari or any other court.”
The court had relied on the Constitution Bench pronouncement in (2003) 2 SCC 45 Ex. Capt. Harish Uppal vs. Union of India.

109. This writ petition was disposed of on 11th May 2018 by the Supreme Court observing that:
“We are absolutely sure, the bar which maintains the highest tradition, shall maintain a peaceful atmosphere not only in Delhi but throughout the country so that there is a fair and speedy trial and prevalence of peaceful atmosphere.

110. A transfer petition being Transfer Petition (Civil) No. 2419/2019 M/s PLR Projects Pvit. Ltd. v. Mahanadi Coalfields Ltd and others was recently brought before the Supreme Court on the contention that the lawyers of the local Bar are not permitting the representation before the Chief Justice of the High Court of Orissa and even outside lawyers are not permitted to appear. Orders dated 16th October 2019, 22nd October 2019 and 24th October 2019 were recorded by the court noticing the position. Very pertinent observations in the order dated 24th October 2019 have been made therein which may be usefully extracted and read thus:

“We have the benefit of hearing learned Attorney General of India as we have issued notice as also learned counsel appearing for the Orissa High Court.

We are informed that both in the High Court and practically all districts the working has been brought to a stand still by the strike of the advocates This means that the access to justice for a common man is not available. Learned counsel appearing for the State of Orissa assures that all police assistance as may be required will be made available both for the High Court and for the district courts to ensure that egress and ingress in all court premises is available so that the willing advocates and litigants can go and appear in their cases. We will expect the courts to perform their task to the best of their abilities even if lawyers refuse to assist the courts. The litigants cannot be without access to justice and one wonders if an alternative would have to be explored in adjacent states for access to justice, if the advocates continue to be on strike.

We are informed that the origination of the strike, though as usual subsequently many other issues are added, was over a decision of collegium clearing the names of some candidate (who practices in this court) and not clearing the name of other candidates. This can hardly be a ground for the lawyers to abstain from work.

Learned Attorney General points out that the perennial issue of strikes has received attention of this court in many cases including of the Constitution Bench in Harish Uppal v. Union of India (2003) 2 SCC 45. The judgments of this Court in Hussain v. Union of India (2017) 5 SCC 702 and Krishnakant Tamrakar v. State of Madhya Pradesh (2018) 17 SCC 27 have again been brought to our notice apart from the Report of the Law Commission (Report No.266) wherein Chapter-VII Loss of Courts‟ Working Days in an aspect discussed. The Law Commission has opined that there is staggering number of working days lost due to strike by advocates without any justifiable reasons.

We have asked learned counsel appearing for the Orissa High Court to file an affidavit setting out the grounds for going on strike and abstaining from work in the year 2018-19 both in the High Court and in each of the district courts, giving a chart of the number of working days for each district and the number of working days lost which will give a clearer picture. Affidavit in this behalf qua the High Court and subordinate courts be filed on or before 6th November, 2019.

xxxx

We thus consider it appropriate to issue notice to the Bar Council of India through the Chairman requesting the Chairman to be in Court to assist us.

We also consider it appropriate to issue notice to the Chairman of the Orissa State Bar Council and the President of the Orissa High Court Bar Association.

We have a little doubt that conduct of the lawyers really falls within the domain of contempt in view of the law enunciated aforesaid. However, before proceeding to take action in that behalf, we deem it appropriate to simply issue notice to explain their conduct. We would specifically desire the Bar Council of India to inform us as to what steps they propose to take in respect of the conduct of the advocates who have violated the directions of this Court as enunciated in the aforesaid judgments.
The Chairman of the Orissa State Bar Council and President of the Orissa High Court Bar Association will also appear in person.
We are informed by the learned counsel appearing for the High Court, Shri Sibo Sankar Misra that some resolutions have been passed by the Co- ordination Committee headed by the President of the Orissa High Court Bar Association to the effect that: (i) his suspension from the Bar Association, (ii) a letter written to the Bar Council of Orissa to initiate action against him and (iii) letter to the State Government to remove him from the panel of lawyers apart from initiating contempt proceedings. In doing so, we have not the least doubt that the said conduct of the lawyers amounts to interfering with the proceedings of this court. As to what consequences should follow for this would also be considered on the next date. In the meantime, all of the aforesaid three decisions are stayed as also the local Bar Association and Bar Council are denuded of the authority to take any action in future also against the counsel in question.
Now coming to the last aspect, the grievance of the petitioner about the facilitation of his representation before the High Court. Learned senior counsel states even if a counsel is engaged from outside Orissa or the party decides to appear in person, security must be ensured.
We are in full agreement and learned counsel for the Orissa High Court assures this Court in that behalf. It will be open for the counsel to appear or the party going to appear in advance intimate the Registrar for making specific security arrangements for their presence and the police department of the State Government will also render full assistance in this behalf.
List on 8th November, 2019.
We desire the learned Attorney General to again assist us on the next date.”
(Emphasis by us)

111. On 8th November 2019, the Supreme Court recorded as follows:
“We are happy to note that the resolution to go on strike has been withdrawn thus giving access to justice to the common man for which this institution exists. xxxx
We have impressed upon the Chairman and Members of the Bar counsel of India who are present here that they are senior members and must ensure that discipline is observed among the advocates so as to ensure that the working of the Courts is not brought to a standstill. We have given example of this court where if really the advocates feel that there a cause to protest, they wear white bands. The advocates bring access to justice to the common man and thus, there can be no question of advocates abstaining from work, an aspect repeatedly re- emphasized by this court that it would be contemptuous in view of the judgments passed by the court but more importantly would go contrary to the oath of profession of the advocates itself. It is for the advocates to ensure that this discipline is adhered to.xxxx
We certainly expect the High Court of Orissa to continue working and lawyers not to abstain but all district courts should at least now start working forthwith and the Bar Council of India to enforce the same by taking action, if the situation so arises, against any delinquent advocates.
xxxx”

(Emphasis supplied)

Clearly access to courts has to be ensured and cannot be imperiled at any level or by any person.

XI. CONCLUSIONS

112. In view of the afore noted pronouncements of the Supreme Court reported in (2003) 2 SCC 45 titled Ex. Capt. Harish Uppal vs. Union of India &Anr;(2017) 5 SCC 702 Hussain &Anr. vs. Union of India, & Ors. and 2018 SCC Online 304, Krishnakant Tamrakar vs. State of M.P, the mere call for meeting, or the very decision to proceed on strike; remaining absent from court and boycott of judicial proceedings; locking the courts, preventing entry to those wanting to enter are completely illegal rendering all persons responsible for the same for appropriate action as mandated by the Supreme Court of India.
This conduct tantamounts to criminal contempt of court in terms of the law laid down by the Supreme Court of India.
113. This conduct also calls for action in accordance with the Jammu and Kashmir Advocates (Regulation of practice in the High Court and Subordinate Courts) Rules, 2003.
114. We have no manner of doubt that such conduct as is in blatant violation of the mandate of law, in the clear pronouncements of the Supreme Court of India cannot be countenanced or condoned. As observed by the Supreme Court, we would become party to such violations if we continue to ignore such actions which have been held by the Supreme Court to be clearly contumacious and falling under the serious category of criminal contempt of court, professional misconduct and even criminal offences.
115. We are reasonably hopeful that given the reminder of the legal position hereby, good sense and conscience of the members of the Bar would prevail and they would conduct themselves in accordance with law ensuring the rights of the public guaranteed under the Constitution of India. We would take a view on this on receipt of further reports from the Registrar General.
116. However, the conduct of those who have indulged in provoking the contumacious conduct as also the obstruction of access to the District Courts is unpardonable and must invite stringent action in accordance with law.

XII. RESULT

117. We accordingly direct as follows:
i) At the first instance issue notice to the advocates detailed in para 27 of this Order to show cause as to why they should not be proceeded against for criminal contempt of court.
ii) Notice to show cause to these advocates as to why they should not be proceeded against under rules 10, 11 of the Jammu and Kashmir Advocates (Regulation of Practice in the High Court and Subordinate Courts) Rules, 2003 as well as proceeded against for the acts which are penal under the provisions of the Indian Penal Code.
iii) The noticees as above shall file a response within two weeks of the receipt of the notices.
iv) The response shall be accompanied by a date wise list of cases wherein these lawyers were engaged by litigants between 1st November 2019 till date and the courts where these cases were listed.
v) The Registrar General shall procure from the Registrar Judicial as also from the Principal District & Sessions Judge, Jammu upto date reports regarding the position with regard to the obstructions to access to the courts as well as CCTV video coverage recorded and photographs thereof, if any, and place the same before us.
vi) The Registrar General shall circulate the judgments referred herein to all Bar Associations in the Union Territories of Jammu and Kashmir as well as the Union Territory of Ladakh and to all Principal District & Sessions Judges for circulation and compliance.
vii) The Registrar IT shall conduct an inquiry and collect all postings on the social media on Youtube or any other site, tweets, messages, interviews and speeches etc. by any counsel in violation of the judgments of the Supreme Court inciting violence/abstention from the court etc and place the same before this court.

List on 29.01.2020

(Rajesh Bindal)
(Judge)

(Gita Mittal)
(Chief Justice)

Jammu.
11.12.2019

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