‘Omar threat to public order’; Sara disputes J&K Govt’s claim
New Delhi, Mar
16: Sara Abdullah Pilot Monday disputed in the Supreme Court the claim of Jammu
and Kashmir administration that freeing her brother, former Chief Minister Omar
Abdullah who has been detained since the abrogation of Article 370 in August
last year, will pose imminent threat to public order.
Pilot, who has
challenged Abdullah’s detention under the Jammu and Kashmir Public Safety Act
(PSA), said that on scrutiny of the verified Facebook account of her brother
she was shocked to discover that the social media posts, purportedly attributed
to him and maliciously used against him, were not made by him.
denied that the mere presence of the detenu coupled with the decision to
abrogate Article 370 would pose an imminent threat to maintain public order.
The factual data about the loss of lives in the erstwhile State of J&K is
utterly irrelevant for the purposes of the present controversy,” she said
in a rejoinder to the reply filed by the Jammu and Kashmir administration on
that the official Facebook account of Abdullah, being a blue tick marked
verified account, has not made any post as claimed in the relied upon material.
said: “…in the facts and circumstances of the present case wherein the
only material used against the detenu are his social media posts, the reliance
on posts that are non-existent and have been wrongly and maliciously attributed
to the detenu vitiates the impugned order of detention in toto and renders the
same legally unsustainable and utterly unconstitutional.”
It said the
entire exercise from the very inception is “malicious, mala fide,
vexatious and suffers from manifest non-application of mind” on part of
the senior superintendent of police as well as the Jammu and Kashmir
administration and is liable to be quashed with immediate effect with exemplary
costs/ strictures being imposed upon the respondents for such blatant and
arbitrary abuse of power.
said certain material was not provided to the detenu earlier and it has now
been placed on record along with the affidavit by the Jammu and Kashmir
administration and non-supply of material, at the inception, impaired the
detenu’s constitutional right of effective representation under Article 22(5)
of the Constitution.
which has formed the basis of order of Abdullah’s detention does not even
remotely lead credence to the apprehension that the detenu was likely to
indulge in activities that are prejudicial to maintenance of public order, it
it is reiterated that the corpus of tweets as made by the detenu that have been
surprisingly used against the detenu bear testimony to the conscientious and
concerted effort of the detenu being prominent public figure to implore the
citizenry to ‘stay calm’ and ‘not to take law in your hands’ and that ‘violence
will only play in the hands of those who do not have best interests of the
state in mind’,” it said.
Pilot denied the
contention of the Jammu and Kashmir administration that she should have moved
the Jammu and Kashmir High Court to avail his remedy before approaching the
approach this court for infraction of personal liberty is itself a fundamental
right guaranteed under Article 32 of the Constitution,” it said.
denied that the gravamen of the challenge by the detenu relates to the fact
that the detenu had been in custody for past six months, had no access to any
form of public speech and expression and therefore there could be no material to
come to the conclusion that the detenu may act in any manner which is
prejudicial to maintenance of public order,” the rejoinder stated.
Magistrate of Srinagar in his reply filed on Pilot’s plea had said “the
detenu has been a very vocal critic of any possible abrogation of Article 370
prior to its abrogation on August 5, 2019. It is submitted that considering the
very peculiar geo-political position of Jammu and Kashmir and Ladakh and its
geographical proximity with Islamic Republic of Pakistan, the concept of
‘public order’ needs to be examined contextually.”
this, Pilot said in her rejoinder that the opposition of the abrogation of
Article 370 falls squarely within the realm of freedom of speech and expression
guaranteed to every citizen of this country.
right assumes greater significance when the right pertains to a person who
being a former chief minister and former leader of opposition (state assembly)
is expected, by the rigors of the Constitution itself, to question and assail
any decision of the dispensation in power.
appalling to observe the statement of the Respondent no. 2 that the
geographical proximity of the UT of J&K with the Republic of Pakistan is
deemed to be an overarching feature that can contextually modify the concept of
‘public order’,” she said.
added that the Republic of Pakistan is in close geographical proximity to three
other states of India (Gujarat, Punjab and Rajasthan) as well and by the
extended logic of the Respondent no. 2, the ‘public order’ in such states would
also be contextually modified.
such a travesty cannot be countenanced under the scheme of Indian law and any
suggestion thereto is to be out rightly rejected as being fallacious and
contrary to law,” it said.
The Supreme Court
bench of Justices Arun Mishra and Indira Banerjee had earlier said “the
matter pertains to personal liberty”.