The Supreme Court on Monday agreed that a petition filed by Sara Abdullah Pilot against the continued detention of former Jammu and Kashmir Chief Minister Omar Abdullah under the Public Safety Act (PSA) needs to be heard quickly as it concerns his personal liberty.
But the authorities told the court that Mr. Abdullah had been a “very vocal critic” of the abrogation of the special status of J&K under Article 370 even before it was actually repealed on August 5, 2019. They said his release now may prove prejudicial to the maintenance of public order in the new Union Territory geographically proximate to Pakistan. They reminded the court that 41,866 persons lost their lives in J&K in 71038 “incidents” since 1990. A detention order under the PSA was not based on any objective determination but rather on the “subjective satisfaction” of the detaining authority, they argued. The court cannot substitute its opinion for that of the detaining authority.
However, in a brief hearing on Monday, a Bench led by Justice Arun Mishra informed Ms. Abdullah's lawyers, senior advocates Kapil Sibal and Gopal Sankaranarayanan, that the case would indeed be heard on March 5.
“This is a matter of personal liberty," Justice Mishra said. Justice Indira Banerjee, the other judge on the Bench, nodded in agreement.
Ms. Pilot has asked the apex court to direct the authorities to produce her brother in court and set him free immediately. She said she has had no information on his whereabouts.
Mr. Abdullah was first detained on August 5 last, when the President notified the abrogation of the special rights of the people of J&K. After detaining him for the maximum six months, a fresh detention order under the PSA was issued in February 2020.
District Magistrate of Srinagar Shahid Iqbal Chaudhary informed the court in his affidavit that Mr. Abdullah “was and continues to be detained in conformity with the mandatory provisions of the PSA and is kept in Hari Niwas (former palace of the erstwhile King, located near the Dal Lake), which has been temporarily declared a subsidiary jail”.
Mr. Chaudhary, represented by Attorney General K.K. Venugopal and Solicitor General Tushar Mehta, justified that the continued detention under the PSA was based on material and documents showing that Mr. Abdullah’s “activities”, even before his first detention in August 2019, was “calculated to disturb public peace and tranquility”.
The Magistrate said the subjective satisfaction of the detaining authority, the grounds of detention and the dossier prepared for his detention under the PSA all clearly indicated a “live and proximate link” between the activities of Mr. Abdullah and the “events that occurred in the past”.
The affidavit said the previous activities of Mr. Abdullah, which are available in the public domain, indicated that even in future he may act in a manner prejudicial to the maintenance of public order in J&K.
“The assertion that merely due to the efflux of time, due to detenu being in custody, there exists no material justifying the apprehension of public order being affected is ex-facie erroneous,” the affidavit said.
Mr. Venugopal argued that Ms. Abdullah had not explained why she came straight to the Supreme Court instead of the J&K High Court. “The High Court is fully functional. It has quashed 68 detention orders since August 2019 and confirmed 11,” he submitted.
The affidavit also claimed that Mr. Abdullah “purposefully failed” to make a representation before the Advisory Board constituted under the PSA or even the government against the detention. The Board is made up of a retired High Court judge and two principal judges.