"How Long This Detention Will Continue?":SC Asks SG To Get Instructions On Plea Challenging Former J&K CM Mehbooba Mufti's Detention

Supreme Court on Tuesday asked Solicitor General to get instruction  on the petition filed by former Chief Minister of Jammu & Kashmir, Mehbooba Mufti's daughter, Iltija challenging her detention under Public Safety Act.

A bench of Justices SK Kaul & Hrishikesh Roy was hearing the petition seeking amendment to the prayers sought in Mufti's habeas corpus petition, which is currently pending adjudication.

"In the application, they (the petitioner) have said that they are moving the application because there has been no reply...", observed Justice S. K. Kaul.

"I have filed the reply. It might have been a little late in reaching...", began SG Tushar Mehta.

"Has the counsel for the petitioner received the reply?", asked Justice Kaul.

When Advocate Nitya Ramakrishnan replied in the affirmative, Justice Kaul remarked, "I haven't received it...I need to read it"

"Why is the original petitioner not coming before the court? Is there any problem?", asked Justice Kaul. "The daughter was here in Delhi when the petition was filed. The court had passed orders for her to be able to access her mother...we have also filed an application saying that there are no pending proceedings (for the same relief in another forum) pursuant to the orders of this court", replied Ms. Ramakrishnan.

"So you are praying now for an early date of hearing? But the matter is before the court now...and you are seeking an interim order to allow the meeting...?", confirmed Justice Kaul.

"Her brother wasn't allowed to meet her before but after we filed this application, he has been able to meet her...", informed Ms. Ramakrishnan. "So why can't we dispose this off?", asked Justice Kaul.

"My Lords, we want clear directions...", responded Ms. Ramakrishnan, indicating prayers for being allowed phone calls, visits by family, close relatives, shifting of residence.

"No, no, two issues can't be mixed up...if something was obstructed, we could have passed directions, but now that the brother has already met...", observed Justice Kaul.

"She is in detention...and there is talk of political party meetings...", pointed out the SG.

"We may say that the detention is wrong...then everything will be allowed...but pending the detention...?", noted Justice Kaul.

"We are seeking 2-3 visits a week. Other inmates are allowed the same...landline phone calls are also permitted to people in jails", pressed Ms. Ramakrishnan.

"No, a blanket order like this would be difficult. But the brother has already met her. As and when a request is made, the state may accommodate the same", ordered Justice Kaul.

"In accordance with the law...", the SG added.

"Without law, nothing is possible...", conceded Justice Kaul.

"Whatever is permissible will be granted...", said the SG, as Ms. Ramakrishnan sought that the same may be notified.

The prayers for amendment of the relief sought in the original petition was allowed.

"The detention has been ordered for how long? And on what grounds?", asked Justice Kaul from the SG.

"Public order...", replied the SG.

"It has earlier been said that the period of detention had come to be exceeded, considering the ground of detention?", ventured Justice Kaul.

"Please don't make any observations, Your Lordships, because there are...(cutting off)", said the SG.

"No, our observations are queries for you to answer...we just want to be addressed on the maximum period for the ground of detention, and the proposal as to how long the detention is to continue...I haven't seen the counter affidavit yet", said Justice Kaul.

"That is why I am requesting to defer any observations...and on these legal points, we shall assist the court", assured the SG.

"Each of these cases would be dealt differently, based on the facts...for the state to say things like "blood bath", "haath kat jayenge"...even I am holding back observations...", continued the SG.

"In a state of exuberance, a lot is said which may not be meant...", said Justice Kaul.

"But not in a state with the issue of militancy!", stressed the SG.

"What can one say to that...this is not all there is to the history of a wonderful state", remarked Justice Kaul.

Finally, the matter was adjourned to October 15 for the SG to procure instructions.

The amendment sought is to include grounds of challenge and additional prayers for challenging the orders of confirmation, dated February 26, 2020 and subsequent extensions, dated May 5, 2020 and July 31, 2020 of the Detention orders impugned in the Habeas Corpus Plea.

The petitioner has averred,

"This Application is preferred on the ground that the said orders were issued subsequent to the filing and during the pendency of this Writ Petition and as such unavailable to the Petitioner at the time of filing of the captioned Writ Petition, and that the same constitute not only a continuing cause of action i.e. the Impugned Detention Order in the captioned Writ Petition, but an egregious aggravation thereof"

The plea states that The Detention Order of Mufti which was based on stale grounds "have become staler even more" since the Petition was filed and that the Respondent Administration has continued to act with total non application of mind and the malice in law, which has only been "reinforced and aggravated" in confirming and extending the order of detention for further periods.

It has been contended that even though the Top Court had issued notice on on the habeas plea moved against the Detention Order dated February 5, passed by the District Magistrate of Srinagar under the Public Safety Act, 1978, against Mufti and had directed the Petitioner to state on affidavit that that to the best of her knowledge no other petition or proceedings has been filed before any forum seeking similar relief, the Respondent Administration has not filed a reply or counter affidavit to the captioned Habeas Corpus Plea.

It is further stated that Writ Petition was scheduled to be listed on 18.03.2020. "However, it was not listed owing to the then impending nation-wide lockdown relating to COVID-19 containment efforts," the plea reads.

In this backdrop, the petitioner seeks issuance of appropriate directions to quash the confirmation orders of detention as well as the subsequent orders of extending the detention.

The main habeas corpus plea filed by Mufti's daughter Iltija states that the detention order has come when Mufti is already under detention since August 5, 2019.

Iltija has submitted that the impugned detention order which is substantially based on the 'dossier' prepared by the Senior Superintendent of Police, Srinagar is replete with personal remarks in bad taste. The "grounds" stated in the order are crammed with deprecating words like Scheming, hard headed, short lived marriage, Daddy's Girl, etc.

"the Impugned Detention Order is wholly based on the Impugned Dossier which is manifestly biased, slanderous and libelous against the Detenu and which no reasonable person ought to rely on for depriving a citizen of her fundamental freedoms and person liberty," she said.

She has further submitted that the foremost reason cited for continued detention, now under PSA was that the six months maximum period of detention under section 107 and 117 CrPC was expiring on the very day the Impugned Detention Order was passed, and that the Detenu had declined to sign a bond or "surety". She pointed out that the bond contained a blanket undertaking that Mufti will not to make any comment on the recent events in the State.

"This bond and surety which she was repeatedly asked to sign, the records would show,interalia included the promise that: "In case of release from detention, I will not make any comment(s) or issue statement(s) or make public speech(s) hold or participate in public assemblies related to the recent events in the State of Jammu and Kashmir, at the present time, since it has the potential of endangering the peace and tranquility and law and order in the State or any part thereof," the plea reads.

Opposing such a blanked ban on Mufti's speech, Iltija has asserted,

"On this count alone, the Detention Order should be set aside, for, preventive detention, tolerated by our polity and jurisprudence as a necessary evil, is not meant to stifle legitimate opposition to state policy."

Mufti, along with other prominent leaders of the erstwhile state of J&K was placed under preventive detention on August 5 last year, at the time of abrogation of Article 370 of the Constitution. As per Section 116(6) proviso in CrPC, the same was due to expire in six months, i.e. on February 5, 2020.

Iltja submitted that another reason cited in the impugned dossier was that Mufti had opposed the abrogation of Article 370 as unconstitutional. This, she asserted, clearly amounted to punishing and preventing "legitimate expression".

"The unconstitutionality of the purported abrogation of Article 370 is a common view held by many legal scholars and political scientists and many articles and writings have published taking the same view. Ex facie it is legitimate expression that is sought to be punished and prevented vide the Impugned Detention Order.

… This cannot be justified as "reasonable objective basis for subjective satisfaction" as required by the statute and as interpreted by this Court in several judgments." she said.

Inter alia, she pointed out the dossier cited instances and utterances made by Mufti over the last decade without details and that the Impugned Detention Order was a "simplicitor gag order in the guise of a preventive detention order".

"the grounds are not only stale, for they refer to utterances admittedly made with no adverse consequences to law and order, but are also vitiated for non-application of mind insofar as they fail to show to why the said utterances pose a threat to public order. Other than a bald statement, not a single instance of any public disturbance has been cited. Nor is there any application of mind as to why such utterances if they contravene any law, cannot be managed by the normal criminal process," she submitted.

On this note, she asserted that there was nothing to show that Mufti had been "acting in a manner prejudicial to the maintenance of public order" and thus, the impugned order was violative of Section 8(3)(b) of the PSA and Articles 14, 19, 21 and 22 of the Constitution.

With these submissions, Iltija has prayed that the impugned order be quashed and that a writ in the nature of Habeas Corpus be issued, commanding the state authorities to set Mufti at liberty.

The petition also seeks appropriate compensation for Mufti for the illegal and unconstitutional detention that she has suffered. The petition has been drawn by Advocates Prasanna S and Aakarsh Kamra. Filed by Advocate on Record Aakarsh Kamra.