Terming it a case of personal liberty, the Supreme Court Monday said it will hear on March 5 a plea filed by Sara Abdullah Pilot challenging the detention of her brother Omar Abdullah under the Jammu and Kashmir Public Safety Act (PSA).
"The matter pertains to personal liberty," said a bench of Justices Arun Mishra and Indira Banerjee even as the Jammu and Kashmir administration contended that Abdullah has been detained under the PSA considering his "past conduct" and possibility of such conduct being repeated on his release, which may "prejudice the public order".
The remarks by the bench came at the fag end of the brief hearing during which Attorney General K K Venugopal said that petitioner should have first approached the Jammu and Kashmir High Court instead of moving the apex court.
The bench observed that last week it had sought response of the Jammu and Kashmir administration on a separate petition challenging the detention of another former J&K chief minister Mehbooba Mufti under the PSA.
Terming Abdullah as "a very vocal critic" of abrogating Article 370, the J&K administration has claimed in the apex court that his acts squarely fell within the realm of public order as it was "calculated to disturb public peace and tranquility".
The District Magistrate of Srinagar has said this in his reply filed on a plea by Pilot.
The J&K administration has said that in the history of independent India the existence and continuance of Article 370 of the Constitution, which used to give special status to the erstwhile state of Jammu and Kashmir, has "always remained a contentious and burning issue".
"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," it said.
It also said that Abdullah should have moved the Jammu and Kashmir High Court to avail his remedy before approaching the apex court.
Solicitor General Tushar Mehta, appearing for J&K administration, told the bench about the reply filed by the district magistrate.
The bench, which posted the matter for hearing on March 5, said the petitioner can file rejoinder, if any, to it.
In its reply, J&K administration has said that detention of Abdullah was ordered under section 8 of the PSA after being satisfied that it is necessary to detain him with a view "to prevent him from acting in any manner prejudicial to the maintenance of public order".
It also dealt with submissions advanced in Pilot's plea which said that as Abdullah was already under detention since August 5 last year, there was no ground to come to a conclusion that he may act in a manner prejudicial to the maintenance of public order.
"It is submitted that the said assertion is fallacious and ignores that the subjective satisfaction of the detaining authority, the grounds of detention and the dossier clearly indicate that there exists a live and proximate link in the events that occurred in the past, the activities of the detenu (Abdullah) and the possibility of such activities being prejudicial to maintenance of public order," it said.
"In light of the above, the deponent states and submits that there was ample material and grounds to issue the impugned order of detention against the detenu considering the past conduct and the possibility of such conduct being repeated on release and thereby prejudicing the public order in the Union Territory of Jammu and Kashmir," it said.
The reply further said, "It may not be out of place to mention that so far since 1990, 41,866 persons have lost their lives in 71,038 incidents throughout the erstwhile state of J&K. This includes 14,038 civilians, 5,292 personnel of security forces and 22,536 terrorists."
It said that J&K High Court is seized of over 350 habeas corpus petitions and pleas challenging the detention orders.
"It is further submitted that the high court is fully functional and has in fact quashed 68 detention orders since August 2019 while confirming 11 detention orders passed by the appropriate authority," it said, adding that the petitioner has failed to disclose the reason for not approaching the high court first.
"It is submitted that entertaining one petition would open flood gates of petitions which in absence of any special ground to make a departure, needs to be avoided," it said.
Seeking dismissal of plea for "bypassing the effective alternative remedy" available under PSA, it said, "The detenue has chosen not to file a representation before the advisory board".
Grounds of detention were supplied to Abdullah to enable him to make an effective representation as stipulated in law, it said, adding that the advisory board had on February 24 observed that there was sufficient cause for his detention.
"It is submitted that the acts, which are easily available in public domain, on the part of the detenu squarely fell within the realm of public order, as it was calculated to disturb public peace and tranquility. It is needless to emphasise that the incitement of the public at large, pertains to public order," it said.
Pilot has approached the apex court claiming that the detention order was "manifestly illegal" and there was no question of him being a "threat to the maintenance of public order".
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