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Friday, October 23, 2020

SC to J&K admn: Can Mehbooba Mufti’s detention be extended beyond a year

The two-Judge Bench, which included Justice Hrishikesh Roy, was hearing a plea filed by Mehbooba's daughter, Iltija Mufti, challenging the detention.

By: Express News Service | New Delhi | Updated: September 30, 2020 1:53:26 am
Mehbooba released, says ‘will take back what Delhi snatched’PDP chief Mehbooba Mufti (File)

THE SUPREME Court on Tuesday asked the Jammu and Kashmir (J&K) administration if former Chief Minister Mehbooba Mufti’s detention under the Public Safety Act (PSA) can be extended beyond a year and, if so, “how long do you propose to extend it”.

“How long has the detention been for and on what grounds? Can the detention be extended beyond one year?” Justice S K Kaul asked Solicitor General Tushar Mehta who appeared for J&K.

The two-Judge Bench, which included Justice Hrishikesh Roy, was hearing a plea filed by Mehbooba’s daughter, Iltija Mufti, challenging the detention.

The Bench asked the J&K administration to respond to Iltija’s plea, and fixed the matter for hearing on October 15 to enable the Centre to file its affidavit and Iltija to file a counter to an affidavit filed by the J&K administration on Monday. “We also want to know the proposal of the government, and how long do you propose to extend it (Mehbooba’s detention),” the Bench told Mehta.

The SG said he would address the Bench on these aspects. Saying Mehbooba’s detention was on the ground of maintaining public order, he sought to highlight some of her statements made at the time of abrogation of Article 370.

In an affidavit filed on Monday, the Srinagar DM said detailed consideration of the material on the basis of which Mehbooba was detained showed her “past conduct…in glorifying militants, brazenly inciting religion to divide people”, “demoralising security forces” and “proclivity to indulge in such behaviour in future which would be highly prejudicial to maintenance of public order…”

The “petitioner herself admits that some of the speeches of the detenu glorified militants or were divisive in nature, thus the rational nexus with disturbance to public order is amply borne out by the petitioner’s own admission,” said the affidavit.

Referring to the charge that he did not apply his mind to whether such speech had caused breach of public peace in the past, the DM said this defeats the purpose of preventive legislation which is to “pre-empt any prejudice to maintenance of public order”.

“The grounds of detention and the dossier clearly indicate there exists a live and proximate link in the events that occurred in the past, the activities of the detenu and the possibility of such activities being prejudicial to maintenance of public order,” said the affidavit.
“It is trite law that the past conduct or antecedent history of a person can appropriately be taken into account in making a detention order,” it said. “It is usually from prior events showing tendencies or inclinations of a person (that) a decision can be taken by the detaining authority regarding the likelihood of the said person, in the future, acting in a manner prejudicial to the maintenance of public order,” it said.

The affidavit said Mehbooba’s “acts… squarely fell within the realm of public order, as it was calculated to disturb public peace and tranquillity”. “It is needless to emphasise that the incitement of the public at large, pertains to public order,” it said.

The affidavit said Mehbooba had not availed the remedy available under PSA — to make a representation to the government. The “order of detention along with grounds of detention, dossier and documents in English language, on the basis whereof detention order was passed, were supplied to the detenu in order to enable her to make an effective representation as stipulated in law,” it said. Subsequently, these were referred to the advisory board, “but the detenu… 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 said.

The affidavit also said that Iltija should have first approached the J&K High Court.

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