SC judge recuses from hearing plea of Omar Abdullah's sister challenging his detention

The Supreme Court was expected to hear the plea filed by former Jammu and Kashmir Chief Minister Omar Abdullah's sister challenging his detention under the Jammu and Kashmir Public Safety Act, 1978. 

Abdullah’s sister, Sara Abdullah Pilot, had argued in her petition that her brother’s detention was based purely on “political reasons” and hence further detention was not “justifiable under the PSA, and is ex-facie illegal and unconstitutional”.

Today, the petition came up before the three-judge SC bench comprising -- Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Sanjiv Khanna.

However, Justice Shantanagoudar recused himself from hearing Pilot’s plea. According to reports, he didn’t give any reason for his recusal.

After the recusal, another bench will hear the petition on February 14. Congress leader and senior SC lawyer Kapil Sibbal is arguing for Sara’s petition challenging the detention under the PSA. Pilot in her petition has said that there is no question of Abdullah being a "threat to the maintenance of public order", PTI reported.

The plea has sought quashing of February 5 order detaining Abdullah under the PSA and also sought his production before the court.

Pilot has said that exercise of powers by the authorities under the CrPC to detain individuals, including political leaders, was "clearly mala fide to ensure that the opposition to the abrogation of Article 370 of the Constitution is silenced".

Her plea said the intent of exercise of power was to "incarcerate not just him (Omar Abdullah) but the entire leadership of the National Conference, as well as the leadership of other political parties, who were similarly dealt with including Farooq Abdullah, who has served the state and the union over several years... stood by India whenever the situation so demanded."

Omar Abdullah was put under house arrest and it was later learnt that section 107 of Code of Criminal Procedure (CrPC), 1973 was invoked to justify such arrest.

He was taken under detention on the intervening night of August 4-5, 2019. The detention was carried ahead of the Narendra Modi government’s decision to abrogate Article 370 and 35A of the Constitution which gave special status to Jammu and Kashmir and bifurcate it into two union territories.

Omar Abdullah's father and five-time Jammu and Kashmir Chief Minister, Farooq Abdullah, and former Chief Minister Mehbooba Mufti were also put under the detention. Farooq Abdullah, the patriarch of the National Conference, was booked under the contentious Public Safety Act (PSA) in September last year.

The detentions of Omar Abdullah and Mufti were scheduled to end on February 6. But hours before February 6, the Jammu and Kashmir administration booked them stringent PSA.

According to media reports, one of the grounds cited by the police to book Omar Abdullah under the PSA included the former Jammu and Kashmir's Chief Minister’s capacity to convince “his electorate to come out and vote in huge numbers”.

The dossier prepared by the police read, Abdullah’s “capacity of the subject to influence people for any cause can be gauged from the fact that he was able to convince his electorate to come out and vote in huge numbers even during the peak of militancy and poll boycotts”.

Pilot's plea challenging the detention under the PSA reads, "there has been a grave violation of Articles 14, 21 and 22 of the Constitution." It further argues that the several such detention were carried out in Jammu and Kashmir in the past seven months, which means "there has been a consistent and concerted effort to muzzle all political rivals".

It said there could be no material available to detain a person who has already been detained for previous six months and the "grounds for the detention order are wholly lacking any material facts or particulars which are imperative for an order of detention", according to PTI.

The plea said Omar Abdullah was not even served with the material that formed the basis of grounds of detention order and its non-supply vitiates the detention, which is liable to be quashed.

The grounds of detention against Omar Abdullah, who was Chief Minister of the state from 2009-14, claims that on the eve of reorganisation of the state he had allegedly made attempts to provoke general masses against the revocation of Articles 370 and 35-A.

Omar Abdullah, who has been junior Foreign Minister and Commerce Minister in Atal Bihari Vajpayee-led Cabinet in 2000, was served with a three-page dossier in which he was alleged to have made statements in the past which were "subversive" in nature.

Ironically, the PSA was introduced in Jammu and Kashmir by Omar Abdullah and Pilot’s grandfather Sheikh Abdullah in 1978. The stringent law was brought to fight timber smugglers. 

Mufti’s daughter, Iltija Mufti, is also likely to take a legal route to challenge her detention under the PSA. She had called the dossier on Mehbooba Mufti a “slander”.