Rejected, infructuous, pending — status of pleas in SC, HC against detention of J&K leaders

While NC leader Omar Abdullah was released by SC after a warning, ex-CM Mehbooba Mufti is still under detention. J&K Bar Council chief Mian Qayoom's legal battle went on for over 10 months.

Former J&K chief ministers Omar Abdullah and Mehbooba Mufti | Photos: Facebook

New Delhi: A year ago, before the Narendra Modi government scrapped Article 370 of the Constitution on 5 August withdrawing the special status granted to the erstwhile state of Jammu and Kashmir, several political leaders including former J&K chief ministers Farooq Abdullah, Omar Abdullah and Mehbooba Mufti were detained.

While some were issued formal detention orders under the Public Safety Act (PSA), others were placed under ‘house arrest’.

Not all of these detentions made it to courts.

However, the ones that did reach the Jammu and Kashmir High Court or the Supreme Court met varied fate — from lingering in courts, being rejected, receiving some success to still pending.

‘I am not free’: Congress leader Saifuddin Soz

Senior Congress leader Saifuddin Soz recently hit out at the Jammu and Kashmir administration for allegedly lying to the Supreme Court that he was not under detention.

A video report by NDTV Thursday showed Soz at his home, allegedly not allowed to move out of his residence where he has been under “detention” for over 10 months.

Soz’s wife had approached the apex court in May this year, alleging that he was placed under house arrest in August, just prior to the Article 370 decision.

She had asserted that Soz had not been informed of the grounds of his detention even after 10 months.

However, during the hearings, the Jammu and Kashmir administration told the court that Soz had never been detained or put under house arrest. It said Soz is a “categorized protectee” given the developments after the removal of the special status of J&K, and police personnel are deployed at his house for his “protection”.

The court accepted these contentions and dismissed the petition on 29 July.

But a day later, videos of the 82-year-old leader struggling to communicate with media personnel from behind a wall emerged.

“The J&K administration presented an affidavit where they say I am not detained. It is a white lie. They (administration) have the courage to speak the untruth in the highest court of India,” Soz told ThePrint.

Other detained leaders ‘not under detention’

Soz’s wasn’t the only case where the court was told that the allegedly detained leader was in fact not under detention.

Awami National Conference (ANC) leader Muzaffar Ahmad Shah, son of former J&K chief minister Ghulam Mohammed Shah, had approached the High Court on 11 September last year along with his family, alleging that they had been detained.

In one of the first court orders related to the detention of political leaders in the Valley after 5 August, the Jammu and Kashmir High Court dismissed the plea moved by Shah in November 2019.

During the hearing, the court was told by the Srinagar authorities that they had not been put under house arrest.

Shah challenged this order before a two-judge bench of the High Court on 20 December 2019. According to court records, the bench was told that their security staff was directed by the SHO and DSP of the J&K Police to not allow them to move out of the house.

While the court did not look into the truth of these allegations, it came up with an odd solution.

After consulting the parties, it directed the authorities to immediately withdraw the security personnel deputed at their residence in March this year. The court also said it would be open to them applying for security cover again at any point in time.

Qayoom’s case lingered in courts for 10 months 

In another instance, the case against the detention of Kashmir Bar Association president Mian Abdul Qayoom under the Public Safety Act (PSA), languished in the judicial corridors for over 10 months.

Qayoom was detained on 5 August and has since remained under detention. The entire legal battle lasted almost till the expiry of his detention period, which was 6 August 2020, rendering the entire process futile.

The first petition was filed on Qayoom’s behalf on 21 August 2019, the same month that he was detained. The petition was, however, dismissed by a single judge after five months on 7 February 2020.

An appeal against this judgment was also rejected on 28 May, with the court saying that Qayoom can make a representation before the government, assuring that he has shunned his “secessionist ideology” for his release.

This was then challenged in the Supreme Court on 12 June. It was listed by the court on 26 June for the first time but by this time Qayoom’s detention order was almost about to expire.

It was listed four times after this — on 15 July, 23 July, 27 July and finally on 29 July.

On 27 July, the Supreme Court asked the J&K administration to consider “early release” for Qayoom, before his detention period expires on 6 August if he agrees to not visit Kashmir or issue any statement there till 7 August.

Two days later, on 29 July, the government accepted this suggestion, without going into the legality of the detention itself.

Omar Abdullah released after SC warning

The case against the detention of National Conference leader and former CM Omar Abdullah reached a similar fate.

Abdullah’s sister Sara Pilot challenged his detention in the Supreme Court on 10 February. Instead of considering the habeas corpus petition on merit, the Supreme Court, on 15 March, asked the central government and Jammu and Kashmir administration to inform the apex court if it was releasing Abdullah, by the following week.

The court had told the government that Pilot’s plea against his detention will be heard on merit if he is not released soon.

Abdullah was released a week later on 24 March after the administration revoked the PSA charges against him. While Pilot’s plea is now unnecessary, it hasn’t come up for hearing since 18 March and remains pending.

Pleas for Mehbooba Mufti, Yousuf Tarigami pending

The Supreme Court’s handling of the Communist Party of India (Marxist) general secretary Sitaram Yechury’s habeas corpus petition, challenging the detention of his party’s J&K leader Mohammed Yousuf Tarigami, also drew severe criticism.

Instead of demanding reasons for Tarigami’s detention, the court imposed several conditions while allowing Yechury to meet the detained leader.

The court had asked Yechury to not indulge in any political activity while meeting Tarigami and also asked him to file a report on his visit.

Several interim orders were passed in the petition since, including a direction to shift an ailing Tarigami from Srinagar to AIIMS.

However, the main petition against the validity of his detention remains pending. According to the court website, it was last listed on 28 January.

Peoples Democratic Party (PDP) president and former CM Mehbooba Mufti’s daughter Iltija also approached the Supreme Court in February challenging her mother’s detention under the PSA.

Mufti had been detained under the Code of Criminal Procedure for six months, from the day Article 370 was revoked. On 5 February, she was placed under preventive detention using the PSA.

While this petition remains pending, Mufti’s detention was extended by another three months last week.

Meanwhile, earlier this month, National Conference president Farooq Abdullah and vice-president Omar Abdullah approached the Jammu and Kashmir High Court, seeking early release of 16 of their party members who, they said, had been “illegally” detained at their houses since 5 August. This petition is also currently pending.

‘Normal activities of a politician’

The Jammu and Kashmir High Court set aside the detention of senior National Conference leader Ali Mohammad Sagar under the PSA.

Sagar was arrested on 6 August last year under the Code of Criminal Procedure, with the authorities saying they believed he would oppose the scrapping of Article 370. Another order of detention was passed against him under the PSA on 5 February, highlighting his opposition to the Article 370 move.

Asserting that the grounds for his detention were “fragile”, the HC observed that Sagar’s activities “are the normal activities of a politician” in a democracy.