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The detention of former Chief Minster of Jammu and Kashmir, Omar Abdullah under the J&K Public Safety Act (PSA), 1978 has been challenged in the Supreme Court by his sister, Sara Abdullah Pilot.
Pilot has moved a habeas corpus petition, urging that the Supreme Court to order the release of Omar Abdullah, who has been under detention for over six months now.
Further, Pilot has also prayed that the Court quash a fresh order of detention passed earlier this month to detain Abdullah under the PSA.
Senior Counsel Kapil Sibal today made an urgent mention of the plea before the Supreme Court.
The petition points out that the initial detention order against Abdullah under Section 107 of the Code of Criminal Procedure (CrPC) had lapsed on February 5, this year. In her plea, Pilot has challenged this order itself, particularly on contentions that the State has not conducted subsequent proceedings including the steps to undertake an inquiry in terms of Section 116, CrPC.
While this is the case, the petitioner has raised questions over a fresh order of detention being passed under the PSA on February 5. It is contended that the provisions of the PSA invoked to to continue detaining Abdullah would have no application to him since he has remained in custody for months in a state that has been under complete lockdown.
In this regard, the petitioner points out that the Government has not produced any new grounds, or any material supporting any ground to justify a fresh order of detention. Pilot contends that,
“In absence of any such fresh ground and material, warranting in law the detention of the person in question, no detention can be ordered and any such detention made sans such fresh grounds and material would not only suffer from the vice of being arbitrary and unconstitutional but would also be frowned upon as being actuated by malice in law.”
The “arbitrary” PSA detention has also been challenged, contending that the grounds cited to justify the same are false, illusory and not contemplated by the PSA.
“… on a bare perusal of the order and the grounds thereto it is evident that the orders proceeds on information that is not only non-existent, bereft of material particulars but is in fact false and misleading and the same is patently belied by open source information otherwise available and accessible on social media. Despite the law on detention being abundantly clear, the Respondents have sought to detain the detenu without any facts or particulars the absence of which would violate Article 21", the petition states.
In this regard, the petitioner states that the grounds cited to detain Abdullah under the PSA includes that he resorted to “dirty politics”and adopted radical methodology “by way of instigating and provoking general masses against the policies of the Central Government.”
Further, as stated in Pilot's petition, it is alleged by the Government that he has ‘posted “many provoking and instigating comments/ideas on social networking sites, so as to instigate common people against the decision of the Parliament which had the potential of inciting violence and disturbing public order in the region."
On the other hand, Pilot argues that there is overwhelming evidence to show that Abdullah has acted as a diligent public figure and that he has “repeatedly requested to general people to maintain peace and tranquillity.” In this regard, Pilot also cites the one of the last tweets made by Abdullah in August last year prior to his detention.
Pilot also contends that Abdullah's public disagreement with the Central Government on its policies is part of his lawful rights as a citizen. As noted in her petition,
While questioning the grounds for his continued detention, the petitioner also points out that one of the accusations made against Abdullah in the dossier handed over to him is that he has used his influence to “to convince the electorate to come out and vote in huge numbers even during peak militancy and poll boycotts.”
"In other words, the detenu is accused of convincing people to participate in elections in huge numbers and exercise their democratic right to vote despite threats from militants", the petition states.
In view of these, among other, contentions, Pilot has asserted the the order of detention under the PSA should be quashed for being arbitrary, whimsical, fanciful and violative of Articles 14 and 21 of the Constitution.
The petition has been filed by Advocate Pragya Baghel and drawn by Advocate Shariq J Reyaz. The petition has been settled by Senior Advocates Kapil Sibal and Gopal Sankaranarayanan.
Abdullah, and other political leaders from J&K, including his father Farooq Abdullah, were detained in the wake of the Central Government's move to abrogate Article 370 of the Constitution of India in August last year.
[Read the Petition]