Justifying the detention of bureaucrat-turned-politician Shah Faesal, the Jammu and Kashmir government has told the Delhi High Court that he instigated people gathered at the Srinagar airport against the sovereignty and integrity of the country.
Faesal had no student visa, though he claimed that he was going to the US for studies, the state government, through DIG, CKR, Srinagar, said in an affidavit.
The affidavit was filed in response to the former IAS officer's habeas corpus petition in which he alleged that he was illegally detained at the Delhi airport on August 14 and taken back to Srinagar, where he has been kept under house arrest.
Faesal's liberty is curtailed in accordance with statutory provisions and under an order passed by an executive magistrate in Budgam when he had refused to furnish a bond to keep peace, the state government said, asserting that he was not in unauthorised custody.
The affidavit said a Look Out Circular (LOC) was issued against Faesal based upon a request from the J&K Police and the action to be taken in terms of LOC was to prevent him from leaving India and inform the Intelligence Bureau.
"On his arrival at Srinagar (from Delhi), he began to address a gathering of people at the arrival terminal. He started instigating the persons gathered against the sovereignty and integrity of the country having the potential of breach of peace. The said actions were witnessed by airport authority and police," it said.
Police personnel and airport authorities, considering that Faesal is the president of a political party, realised that his actions have the potential to cause breach of peace which can result in disruption of peace and tranquillity in the region, the state government said.
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The people in and around the airport were being influenced and provoked/instigated by Faesal to commit the prejudicial activities, it said, adding that despite being warned, he continued the activities and started creating an unruly atmosphere.
The affidavit stated that Faesal was apprehended on the spot on verbal orders of the executive magistrate who took action and asked him to furnish a bond of Rs 50,000 for keeping peace. He, however, refused to furnish the bond after which an order was passed by the magistrate, detaining the petitioner.
The state government said it is inconceivable that he would leave the country at this juncture to pursue an academic course in the US.
"He has submitted his resignation from the civil service and joined politics and formed a political outfit named 'J&K Peoples Movement'," it said in the affidavit.
"It is not conceivable in the absence of any cogent material to accept the theory that a leader of a political outfit which is very vocal about constitutional actions taken by the constitutional bodies of our country on August 5, would leave the country at this juncture to pursue academic course in Harvard University, that too without a student visa," the state government said.
A habeas corpus plea requires a person under arrest to be brought before a judge or a court.
The habeas corpus plea, moved on Faesal's behalf through a 'parokar' or next of friend -- Mohd Hussain Cader -- said the former IAS officer was on his way to Harvard University in the US for higher studies when he was illegally detained at the Delhi airport under the Public Safety Act (PSA).
However, the state government said Faesal has obtained tourist visa and not a student visa, and the B1/B2 visa affixed on his passport not being a student visa does not entitle him to study in the US.
Except placing his ticket on record from Delhi to Turkey to Frankfurt to Boston, he has not shown anything to satisfy the court that he was travelling for academic purpose, it said, adding that he has resorted to falsehoods, which disentitles him to invoke the extraordinary constitutional jurisdiction of this court.
The plea is pending before a bench of justices Manmohan and Sangita Dhingra Sehgal which has listed it for hearing on September 3.
The state government, seeking dismissal of the plea, raised preliminary objection on the maintainability of the petition, saying the Delhi High Court does not have the territorial jurisdiction to entertain the plea.
It said the action of curtailment of the petitioner's liberty, the order under which it was done and the authority which has passed the order are within the jurisdiction of Jammu and Kashmir High Court, which would have the jurisdiction to entertain such a plea.
The state government said the order of the executive magistrate to detain Faesal was not challenged by anyone.
It said the petition mentioned that his wife met him at the detention centre, however, it is deliberately suppressed that he is housed in Hotel Centaur which is a posh hotel in Srinagar and she met him at the hotel.
The high court had on August 23 declined to issue a formal notice on faesal's petition and had asked the Centre, state government to file their response to the plea.
It had also made it clear that it was not going to examine the issue of Faesal's travel to the US for studies as it was not a prayer sought in the habeas corpus plea.
The plea alleged that the manner in which Faesal was "whisked away" to Kashmir without even a transit remand amounted to "abduction".
It said he was travelling to the US to complete his course in Masters in Public Administration when he was "illegally picked up" from the Indira Gandhi International Airport.
In the aftermath of the Centre removing Jammu and Kashmir's special status under Article 370 of the Constitution, Faesal had said the state was experiencing an "unprecedented" lockdown and its 8 million population were "incarcerated" like never before.
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