SC Adjourns Plea For Release Of Former J&K CM Omar Abdullah Till Next Week

The Supreme Court on Wednesday adjourned till next week the hearing of the habeas corpus petition filed by Sarah Abdullah Pilot challenging the detention of her brother and former Chief Minister of erstwhile State of Jammu and Kashmir Omar Abdullah.

A bench comprising Justices Arun Mishra and M R Shah adjourned the matter due to the non-availability of Solicitor General Tushar Mehta.

Though Senior Advocate Kapil Sibal requested for a posting tomorrow, the bench said that it was not sitting tomorrow. 

Accordingly, the plea was posted next week.

Fresh detention orders under the PSA were issued against Omar Abdulla and another ex-CM of J&K Mehbooba Mufti on February, immediately before their six months period of detention ordered in August 2019 was about to lapse. His earlier detention since August 5, 2019 was under Section 107 of the Code of Criminal Procedure.

The detention is, the petition contends, based purely on political reasons. Mere opposition to the policy of the central government is being projected as against national interest to justify the detention, stated the petition. Therefore, the detention order is not justifiable under the PSA, and is ex-facie illegal and unconstitutional, as per the petition.

Since he has been under detention since August 4/5 till February 5, the question of his being a threat to the maintenance of public order does not arise. When the Section 107 CrPC order lapsed, there were no new facts which justified the PSA order.

"This exercise of power is ex facie mala fide, for entirely political considerations, and has nothing to do with necessary ingredients required for exercising powers under Section 8(1) of the Act", the petition states. Under Section 8(1), a person can be detained only to "prevent him from acting in any manner prejudicial to security of the State or maintenance of the public order".

It is stated that similar detention orders have been issued against other political leaders in a "mechanical manner", which suggests that there is a "concerted and consistent approach to muzzle all political rivals".

To rebut the narrative that he constitutes a threat to peace and order, the National Conference leader has stated that he had been appealing for peace and co-operation for the period up to his first detention.

"a reference to all the public statements and messages posted by Omar Abdullah during the period up to his first detention would reveal that he kept calling for peace and co-operation – messages which in Gandhi's India cannot remotely affect public order", the petition settled by Senior Advocates Kapil Sibal and Gopal Sankaranarayanan stated.

It is alleged that the detenu was not served with the material forming the basis of detention order, thereby violating his right to make effective representation against it as per Article 22(5) of the Constitution.

"the (detention) order conflates "Governmental policy" with the 'Indian State', suggesting that any opposition to the former constitutes a threat to the latter. This is wholly antithetical to a democratic polity and undermines the Indian Constitution", it was stated in the petition filed through Advocate Pragya Baghel.

"The impugned order proceeds on the ipse dixit of the Senior Superintendent of Police, and as such being arbitrary, vague, irrelevant, whimsical and fanciful deserves to be quahsed by an appropriate writ of this Hon'ble Court", pleaded the petition.

The J&K Administration has supported the detention order by filing a counter affidavit to the plea stating that he was a crowd influencer who could raise mass agitations against the Centre for repealing the special status of the state, which had the potential to create law and order problems in the region.

The counter affidavit filed by District Magistrate, Srinagar stated that he has been a vocal critic of attempts to repeal Article 370 & 35A and has a history of making provocative statements in social media against the Union of India.