How is PIL maintainable? HC on Mehbooba’s plea

Srinagar, Nov 3: The High Court of J&K and Ladakh would hear on November 18 the arguments on maintainability of the Public Interest Litigation (PIL) filed by PDP president and former Chief Minister Mehbooba Mufti, seeking the court’s intervention for the repatriation of all undertrials from Jammu and Kashmir who are currently lodged in outside jails.

As the matter came up before the division bench of Chief Justice Arun Palli and Justice Rajnesh Oswal, the Court raised the question of maintainability of the PIL under law to which the counsel Aditya Gupta, representing Mehbooba Mufti sought time to argue.

In response to the counsel’s submission for time to advance the arguments in support of his contention, the court listed the matter for continuation of the arguments on November 18.

In the PIL, Mehbooba Mufti is seeking immediate judicial intervention to address what she describes as a "humanitarian crisis" affecting hundreds of undertrial prisoners from the Union Territory.

“Being a political activist and a former Chief Minister, a lot of family members of undertrials have been requesting to take up the issue with the Government,” she says in the PIL.

“We urged the government on the issue of return of the undertrial prisoners who are lodged in jails outside J&K be brought to jails in J&K, but no action has been taken by the government as a result of which, the petitioner, in public interest, has preferred the present petition,” the petition said.

The PIL is seeking immediate repatriation and direction to the government to transfer forthwith all undertrial prisoners belonging to J&K who are presently lodged in prisons outside the Union Territory to the jails within J&K.

In the PIL, Mehbooba submitted that the court should also be informed by the jail authorities about written reasons demonstrating “unavoidable, compelling necessity, to keep the undertrials outside jails. In such exceptional cases, there should be a quarterly judicial review, she said.

Mehbooba has urged the court to ensure family and counsel access protocol by “framing and enforcing an access protocol ensuring minimum weekly family interviews in person, unrestricted privileged lawyer-client interviews subject to reasonable regulations, and no denial on cost/escort pretexts”.

She also sought to intervene that the Legal Services Authorities should monitor compliance and file quarterly reports.

The petition also seeks physical production of repatriated under-trials and fixing timelines for evidence recording and preventing adjournments attributable to custody logistics.

The plea also seeks the constitution of a two-member oversight and grievance redress committee of retired district judges to audit under-trial locations, family-contact logs, lawyer-interview registers, and production orders. It should also recommend disciplinary action for non-compliance and submit bi-monthly status reports to the court.

The petition challenges the continuing practice of lodging under-trials belonging to J&K in prisons outside the Union Territory.

“The practice relegates under-trials to a condition worse than convicts, violates the presumption of innocence, and frustrates core Article 21, which guarantees family contact, effective access to counsel, and a meaningful, speedy trial,” the PIL said.

Mehbooba advocates that the presumption of innocence should be a cardinal principle. “To punish by distance and separating undertrials from courts and families makes detention indistinguishable from punishment”.

The petitioner contends that the practice of lodging under-trials from J&K in distant prisons in other States, despite their FIRs and trials pertaining to jurisdictions within J&K, results in gross violation of their fundamental rights under Articles 14 and 21 of the Constitution.