Omar Abdullah's sister moves SC against his detention under PSA

Former Jammu and Kashmir chief minister Omar Abdullah's sister Monday moved the Supreme Court challenging his detention under the J&K Public Safety Act, 1978 saying the order of detention is 'manifestly illegal' and there is no question of him being a 'threat to the maintenance of public order'.

In her plea, Sara Abdullah Pilot has said that exercise of powers by authorities under the Code of Criminal Procedure to detain individuals, including political leaders, was 'clearly mala fide to ensure that the opposition to the abrogation of Article 370 of the Constitution is silenced'.

It said the intent of exercise of power was to 'incarcerate not just him (Omar Abdullah) but the entire leadership of the National Conference, as well as the leadership of other political parties, who were similarly dealt with including Farooq Abdullah, who has served the state and the union over several years... stood by India whenever the situation so demanded.'

The plea has sought quashing of February 5 order detaining Omar Abdullah under the PSA and also sought his production before the court.

Senior advocate Kapil Sibal, appearing for petitioner Sara Abdullah Pilot, mentioned the matter for urgent listing before a bench headed by Justice N V Ramana.

Sibal told the bench that they have filed a habeas corpus petition challenging the detention of Abdullah under the PSA and the matter should be heard this week.

The bench agreed to urgent listing of the matter.

In her plea, Pilot has said that on the intervening night of August 4-5, 2019, Omar Abdullah was put under house arrest and it was later learnt that section 107 of CrPC, 1973 was invoked to justify such arrest.

'There has been a grave violation of Articles 14, 21 and 22 of the Constitution,' the plea said, adding, 'similar orders of detention have been issued by the Respondents (authorities of union territory of Jammu and Kashmir) over the last seven months in a wholly mechanical manner to other detenues, which suggest that there has been a consistent and concerted effort to muzzle all political rivals'.

It said there could be no material available to detain a person who has already been detained for previous six months and the 'grounds for the detention order are wholly lacking any material facts or particulars which are imperative for an order of detention'.

It said the provisions of PSA were "wholly violated" and none of the conditions laid down to justify a detention order exists, 'nor is even adverted to'.

'It is rare that those who have served the nation as members of Parliaments, Chief Ministers of state, ministers in the union and have also stood by the national aspirations of India are now perceived as a threat to the state,' the plea said.

'In fact, a reference to all the public statements and messages posted by the detenue (Omar Abdullah) during the period up to his first detention would reveal that he has kept calling for peace and co-operation - messages which in Gandhi's India cannot remotely affect public order,' it said.

The plea said Omar Abdullah was not even served with the material that formed the basis of grounds of detention order and its non-supply vitiates the detention, which is liable to be quashed.

'It is therefore of the utmost importance and of the utmost urgency that this court protects not only the individual's Right to Life and Liberty but also protects the essence of Article 21 which is the cornerstone of Part 3 of the Constitution, a violation of which is anathema to all that a democratic nation stands for,' the plea said.

'Finally the order conflates governmental policy with the Indian state, suggesting that any opposition to the former constitute a threat to the later. This is wholly antithetical to a democratic polity and undermines the Indian constitution,' the petition said.

The plea said grounds on which Omar Abdullah's detention has been ordered are 'false and illusory to the extent of being non-existent and are not grounds within the contemplation' of the PSA.

'Apart from the obvious fact that disagreement with the policies of the Central government is a lawful right of a citizen in a democracy (especially to a member of the opposition), it is submitted that all such observations were not supported by any material whether in the form of social media posts or otherwise,' it said.

It said that at no point of time in his 'prolific political career', he has resorted to or indulged in conduct unbecoming of a 'conscientious public figure'.

The dossier handed over to him along with order of detention under PSA contains 'patently false and ridiculous material' and he has been accused of 'favouring radical thoughts' and of 'planning and projecting his activities against the Union of India under the guise of politic' while enjoying the support of 'gullible masses', it said.

'This exercise of power is ex-facie mala fide, for entirely political considerations and has nothing to do with the necessary ingredients required for exercising power under section 8 (1) of the Act of 1978,' it said.

The grounds of detention against Omar Abdullah, who was chief minister of the state from 2009-14, claims that on the eve of reorganisation of the state he had allegedly made attempts to provoke general masses against the revocation of Articles 370 and 35-A.

Omar Abdullah, who has been junior foreign minister and commerce minister in Atal Bihari Vajpayee-led Cabinet in 2000, was served with a three-page dossier in which he was alleged to have made statements in the past which were 'subversive' in nature.