New Delhi: The Supreme Court Tuesday asked the Jammu and Kashmir administration how long it intended to keep former chief minister Mehbooba Mufti in detention under the stringent Public Safety Act (PSA).
The court was hearing a habeas corpus petition filed by Mehbooba’s daughter Iltija Mufti, challenging her mother’s detention.
A bench led by Justice Sanjay Kishan Kaul sought to know how long a person could be kept in custody under a preventive detention law even as the Union Territory administration said Mehbooba was held because she posed “an imminent threat of deterioration of maintaining the public order”.
In an affidavit signed by the district magistrate of Srinagar, the Union Territory administration said the former CM had “glorified militants”, “brazenly incited religion to divide the people” and “demoralised the security forces”.
The affidavit also stated that she has the “proclivity” to indulge in such behaviour in the future, which would be highly prejudicial to the maintenance of public order.
The bench, however, asked Solicitor General Tushar Mehta to address the court on 15 October, the next date of hearing, on a few questions.
“You will have to address us on the ground of detention and what is the maximum period (to keep a person detained) and whether you can extend it beyond one year. Can it be kept forever? We would like to know,” the court told Mehta.
Mehbooba has been in preventive detention since August 2019, when Article 370 was scrapped, subsequently dividing the state into two UTs. After being detained at multiple government facilities in Srinagar, Mehbooba was booked under PSA in February along with other senior politicians, including former CM Omar Abdullah.
Also read: Scrapping Article 370 was ‘marital rape’, assault on faith of J&K, says PDP’s Naeem Akhtar
Court asks government to find solution
The top court, however, declined to entertain Iltija’s amendment application, seeking permission for Mehbooba to conduct political activities as head of the Peoples Democratic Party (PDP). The bench said Mehbooba can place her request before the detaining authority for permission.
It then asked Mehta to find some “via media out” (to find a solution), saying detention cannot continue forever.
Advocate Nitya Ramakrishnan, appearing for Iltija, said Mehbooba has not been allowed to meet her family.
At this, Justice Kaul said, “How can that be possible, considering she is in detention?” He then asked Mehta how long does the government propose to extend it.
‘Detained to prevent repeat of her past conduct’
The J&K administration defended booking Mehbooba under PSA, saying that her past conduct was considered while passing the order, which the advisory board also confirmed. An advisory board, under the law, confirms or rejects a detention order by the local authority.
The J&K affidavit said provisions of ordinary criminal law in Mehbooba’s case would be futile. It submitted that Mehbooba herself had admitted that some of her speeches “glorified militants or were divisive in nature”.
“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,” the affidavit read.
The affidavit also urged the court to exercise caution while substituting its own opinion for that of the authority.
‘Failed to challenge detention before advisory board, HC’
The J&K administration also submitted that it was unjustified and unwarranted to challenge Mehbooba’s detention directly before the top court, even before exhausting other legal remedies available to her or the family.
It said Mehbooba had failed to make a representation before the advisory board that confirmed her detention under PSA.
The former CM was supplied with all the documents, including the grounds, that form the basis of her detention. The same were given to her in order to enable her to make an effective representation as stipulated in the law, the affidavit said.
“The Detenu herein, despite being aware of the same and being made aware of the same, purposefully failed to make a representation before the said advisory board,” it stated.
Pointing out that the J&K High Court is fully functional and has quashed 137 detention orders since August last year, the affidavit also said that Mehbooba has failed to disclose the reason or the justification for not approaching the high court.
“It is submitted that entertaining one petition would open flood gates of petitions which, in the absence of any special ground to make a departure, needs to be avoided,” the J&K administration stated in its affidavit.
Also read: Rejected, infructuous, pending — status of pleas in SC, HC against detention of J&K leaders