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J&Okay Government to SC:’Omar nonetheless a risk to public order’

New Delhi, Mar 2:
Jammu and Kashmir administration informed the Supreme Court on Monday that
National Conference leader Omar Abdullah has been detained under the Public
Safety Act considering his “past conduct” and possibility of such
conduct being repeated on his release, which may “prejudice the public
order”.

Terming Abdullah
as “a very vocal critic” of abrogating Article 370, the J&K
administration claimed that his acts squarely fell within the realm of public
order as it was “calculated to disturb public peace and tranquility”.

The District
Magistrate of Srinagar has said this in his reply filed on a plea by Sara
Abdullah Pilot, who has challenged the detention of her brother Omar Abdullah under
the provision of the Jammu and Kashmir Public Safety Act (PSA).

The J&K
administration has said that in the history of independent India the existence
and continuance of Article 370 of the Constitution, which used to give special
status to the erstwhile state of Jammu and Kashmir, has “always remained a
contentious and burning issue”.

“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,” it said.

It also said that
Abdullah should have moved the Jammu and Kashmir High Court to avail his remedy
before approaching the apex court.

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The matter came
up for hearing on Monday before a bench of Justices Arun Mishra and Indira
Banerjee.

Solicitor General
Tushar Mehta, appearing for J&K administration, told the bench about the
reply filed by the district magistrate.

The bench, which
posted the matter for hearing on March 5, said the petitioner can file
rejoinder, if any, to it.

In its reply,
J&K administration has said that detention of Abdullah was ordered under
section 8 of the PSA after being satisfied that it is necessary to detain him
with a view “to prevent him from acting in any manner prejudicial to the
maintenance of public order”.

It also dealt
with submissions advanced in Pilot’s plea which said that as Abdullah was
already under detention since August 5 last year, there was no ground to come
to a conclusion that he may act in a manner prejudicial to the maintenance of
public order.

“It is
submitted that the said assertion is fallacious and ignores that the subjective
satisfaction of the detaining authority, the grounds of detention and the
dossier clearly indicate that there exists a live and proximate link in the
events that occurred in the past, the activities of the detenu (Abdullah) and the
possibility of such activities being prejudicial to maintenance of public
order,” it said.

“In light of
the above, the deponent states and submits that 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,” it said.

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The reply further
said, “It may not be out of place to mention that so far since 1990,
41,866 persons have lost their lives in 71,038 incidents throughout the
erstwhile state of J&K. This includes 14,038 civilians, 5,292 personnel of
security forces and 22,536 terrorists.”

It said that
J&K High Court is seized of over 350 habeas corpus petitions and pleas
challenging the detention orders.

“It is
further submitted that the high court is fully functional and has in fact
quashed 68 detention orders since August 2019 while confirming 11 detention
orders passed by the appropriate authority,” it said, adding that the
petitioner has failed to disclose the reason for not approaching the high court
first.

“It is
submitted that entertaining one petition would open flood gates of petitions
which in absence of any special ground to make a departure, needs to be
avoided,” it said.

Seeking dismissal
of the plea for “bypassing the effective alternative remedy”
available under the PSA, the district magistrate said, “The detenue has
chosen not to file a representation before the advisory board”.

Grounds of
detention were supplied to Abdullah to enable him to make an effective
representation as stipulated in law, it said, adding that the advisory board
had on February 24 observed that there was sufficient cause for his detention.

“It is submitted
that the acts, which are easily available in public domain, on the part of the
detenu squarely fell within the realm of public order, as it was calculated to
disturb public peace and tranquility. It is needless to emphasise that the
incitement of the public at large, pertains to public order,” it said.

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It said the
detention order is “not vague or without any material facts” and such
order based on subjective satisfaction of detaining authority cannot be a
matter of judicial review.

“The
deponent states and submits that invocation of jurisdiction of this court to
issue high prerogative writ in the present case is unjustified and unwarranted
in as much as the detention of the detenu was neither illegal nor unlawful as
alleged in the petition,” it said.

Pilot has
approached the apex court claiming that the detention order was
“manifestly illegal” and there was no question of him being a
“threat to the maintenance of public order”.

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