Justice Mohan Shantanagoudar Recuses From Hearing Petition Against Detention Of Former J&K CM Omar Abdullah

Justice Mohan M Shantanagoudar, Supreme Court judge, recused from hearing the petition filed by Sarah Abdullah Pilot, sister of former J&K Chief Minister Omar Abdullah, challenging his detention under the J&K Public Safety Act.

No reasons were cited for recusal.

The petition came up before the bench comprising Justices NV Ramana, Justice Shantanagoudar and Sanjiv Khanna on Wednesday. In view of the recusal, the petition will be considered by another bench on Friday. This was after Senior Advocate Kapil Sibal expressed personal difficulties in appearing for the matter tomorrow.

Fresh detention orders under the PSA were issued against Omar Abdulla and another ex-CM of J&K Mehbooba Mufti on February, immediately before their six months period of detention ordered in August 2019 was about to lapse. His earlier detention since August 5, 2019 was under Section 107 of the Code of Criminal Procedure.

The detention is, the petition contends, based purely on political reasons. Mere opposition to the policy of the central government is being projected as against national interest to justify the detention, stated the petition. Therefore, the detention order is not justifiable under the PSA, and is ex-facie illegal and unconstitutional, as per the petition.

In her petition, Sarah Pilo contends that since he has been under detention since August 4/5 till February 5, the question of his being a threat to the maintenance of public order does not arise. When the Section 107 CrPC order lapsed, there were no new facts which justified the PSA order.

"This exercise of power is ex facie mala fide, for entirely political considerations, and has nothing to do with necessary ingredients required for exercising powers under Section 8(1) of the Act", the petition states. Under Section 8(1), a person can be detained only to "prevent him from acting in any manner prejudicial to security of the State or maintenance of the public order".

It is stated that similar detention orders have been issued against other political leaders in a "mechanical manner", which suggests that there is a "concerted and consistent approach to muzzle all political rivals".

To rebut the narrative that he constitutes a threat to peace and order, the National Conference leader has stated that he had been appealing for peace and co-operation for the period up to his first detention.

"a reference to all the public statements and messages posted by Omar Abdullah during the period up to his first detention would reveal that he kept calling for peace and co-operation – messages which in Gandhi's India cannot remotely affect public order", the petition settled by Senior Advocates Kapil Sibal and Gopal Sankaranarayanan stated.

It is alleged that the detenu was not served with the material forming the basis of detention order, thereby violating his right to make effective representation against it as per Article 22(5) of the Constitution.

"the (detention) order conflates "Governmental policy" with the 'Indian State', suggesting that any opposition to the former constitutes a threat to the latter. This is wholly antithetical to a democratic polity and undermines the Indian Constitution", it was stated in the petition filed through Advocate Pragya Baghel.

"The impugned order proceeds on the ipse dixit of the Senior Superintendent of Police, and as such being arbitrary, vague, irrelevant, whimsical and fanciful deserves to be quahsed by an appropriate writ of this Hon'ble Court", pleaded the petition.

The grounds of detention against Omar reportedly allege that on the eve of the reorganisation of the state he had made attempts to provoke general masses against the revocation of Articles 370 and 35-A.

The 49-year old political leader's "ability" to convince electorates to vote in huge numbers even during the peak of militancy and poll boycott calls by separatists and militants, is also reportedly cited as one of the grounds of detention