Repatriation of undertrials to J&K jails: HC reserves decision on maintainability of Mehbooba’s plea

Srinagar, Nov 18: The High Court of J&K and Ladakh on Tuesday reserved a decision on the maintainability of a Public Interest Litigation (PIL) filed by PDP president and former Chief Minister Mehbooba Mufti, seeking the repatriation of all undertrials from Jammu and Kashmir who are currently lodged in outside jails.

As the PIL came up before a division bench comprising Chief Justice Arun Palli and Justice Rajnesh Oswal, the bench observed that the petition has been filed out of keeping with what constitutes a “Public Interest”.

“What locus standi she (Mehbooba) has. Is it not that the public interest has been misused and abused?” Justice Rajnesh Oswal, at the very outset, asked Aditya Gupta, counsel for Mehbooba.

In an obvious reference to the newspaper reports following the hearing of the petition on November 3, the bench observed orally, “It was published in the newspapers as if she (Mehbooba) appeared and argued before us. Was this for publicity because of elections?”.

“She is the president of a political party. How could she file it? If there was public interest, why didn't some other person did not file it?”

The bench made the observations while hearing arguments on the maintainability of Mehbooba’s petition in the public interest.

Advocate Aditya argued in support of the PIL and defended its maintainability in the face of counterarguments by the counsel of the Centre and the J&K government.

Opposing the PIL, Deputy Solicitor General of India (DSGI), appearing for the Ministry of Home, Government of India, argued that Mehbooba has no locus standi to file the PIL as she is not an aggrieved person and none of her rights have been violated. Moreover, she, the DSGI said represents a political party and has filed the petition as “representative of a political party to secure political benefits”.

“The petition has not been filed with a bonafide public interest but with a political interest which is deprecated by the Supreme Court”, he argued.

The DSGI said that the fundamental rights are “subservient” to public rights which included public interest and national security. “In the interest of national security and in order to uphold public order and law, the fundamental rights are to give way to national and public interests”, he said.

The DSGI submitted that in the present scenario, there have been various examples of “breach of public order and security” which have necessitated shifting of undertrial prisoners outside the J&K for “public interest and security, besides preservation of national security”.

The action questioned in the PIL thus could not be taken as a breach of any fundamental right of any undertrial prisoners who have been shifted out of J&K and the petition merits dismissal, he said.

Assisting counsel appearing for J&K’s Home Department, Maha Majeed pleaded that Mehbooba Mufti is a political leader and is president of PDP. She has filed the petition to gain public sympathy and votes.

As per the judgment of the Supreme Court, a petition being filed with malafide motives deserves to be dismissed and as such, the PIL by the PDP president merits dismissal, she said.

In the PIL, filed through her counsel Aditya Gupta, 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”.

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 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 about jurisdictions within J&K, results in gross violation of their fundamental rights under Articles 14 and 21 of the Constitution.