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.
"It is 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 her petition.
Pilot claimed 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.
Her rejoinder 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.
The rejoinder 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 adminstration and non-supply of material, at the inception, impaired the detenu's constitutional right of effective representation under Article 22(5) of the Constitution.
The material 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 said.
"Per contra 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 apex court.
"Right to approach this court for infraction of personal liberty is itself a fundamental right guaranteed under Article 32 of the Constitution," it said.
"It is 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.
The District 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."
Responding to 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.
"The said 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.
"It is 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.
The rejoinder 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.
"Clearly 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".
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