No Reply by Govt on Mehbooba Habeas Plea Till Now, Iltija Moves SC

Supreme Court had issued notice on the plea on 26 February, but there has been no hearing since then.

File image of former J&K chief minister Mehbooba Mufti. 

(Photo: Reuters)

Former Jammu and Kashmir chief minister Mehbooba Mufti’s daughter moved the Supreme Court asking for an early hearing on the habeas corpus petition filed on her mother’s behalf on Friday, 18 September, The Quint has learnt. The court has not yet listed the case.

In her new application, Iltija Mufti notes that the Centre and J&K government have failed to reply to the petition, even though the Supreme Court had issued notice to the J&K administration on the case and told them to file a reply as far back as 26 February.

Iltija had filed the habeas corpus plea in the apex court back in February challenging the detention of her mother under the controversial J&K Public Safety Act 1978 (PSA) on 5 February.

This followed six months of preventive detention under the Code of Criminal Procedure, from the day Article 370 was effectively abrogated.

The habeas corpus petition argued that the detention was illegal, noting that the dossier prepared by J&K police that forms the basis of the PSA order against Mufti, which, it argues "betrays political bias and personal bias" against her. It is also alleged that the dossier is also "slanderous and libelous against the detenu, and completely unbecoming of a responsible officer".

The Supreme Court had listed Mufti’s plea for hearing again on 18 March, but with restrictions imposed by the court on hearings because of the COVID-19 crisis, the matter was not heard, and it has not been listed for hearing since. Mehbooba’s detention under the PSA has been extended twice in the intervening period for three months at a time, in May and August, and is set to run till 4 November.

WHAT IS ILTIJA MUFTI ASKING FOR NOW?

In her application for the court to list the matter urgently, Iltija has argued that the petition relates to the personal liberty of Mehbooba Mufti, and her fundamental right to a constitutional remedy “would be rendered illusory if the hearing on the Petition to quash her illegal and unconstitutional detention is delayed indefinitely.”

She notes that in April, Mehbooba was moved to her Gupkar Road residence in Srinagar, which has been notified as a subsidiary jail for her detention. Since then, she has not been allowed visits by close family except for one visit by her brother and her sister’s husband on 19 August.

The former CM has not been allowed to meet or discuss the affairs of her political party, the PDP, despite multiple requests to the administration. She has been cut off from all modern forms of communication, including the internet and even her landline phone has been disconnected.

It is argued that these actions by the J&K administration amount to a breach of Mufti’s fundamental rights under Articles 19 and 21 of the Constitution.

“The Administration’s conduct in the treatment of the Detenu is betrays total non-application of mind and callous disregard of her fundamental rights. Not only does it disregard that the Detenu is in effect confined without trial and without an offence, but also disregards the fact that this Hon’ble Court has deemed it fit to issue notice in her prayer for release from illegal detention directing the Respondent Administration to show cause why she should not be released. The Respondent Administration is yet to show any such cause.” 

Iltija Mufti’s application to the Supreme Court

Iltija has therefore asked the court to direct the central and J&K governments to reply to the original writ of habeas corpus within two weeks, failing which they will no longer have a right to submit a reply.

She has also asked for interim directions to the J&K administration to allow Mehbooba to be visited by close relatives and family at least five times a week, attend to the affairs of her political party, and for the re-installation of her landline telephone connection.

In addition to the challenge of the original detention order under the PSA against Mehbooba, Iltija has also filed an application for quashing of the confirmation of her detention and the extensions of her detention. She argues that there were no grounds for these actions of the J&K administration, and that no fresh material was provided to justify keeping her in preventive detention.

ON WHAT GROUNDS HAS MEHBOOBA’S DETENTION UNDER PSA BEEN CHALLENGED?

The Quint has previously reported on the problematic details of the PSA dossiers against Mufti and Omar Abdullah that formed the basis of their detention. Abdullah was released on 24 March.

The habeas corpus plea for Mehbooba objects to the following points raised in the dossier against her (which are reiterated in the new application filed by Iltija on Wednesday):

• The Impugned Dossier describes the detenu ie Mehbooba Mufti as a “hard-headed and scheming mind.” It also describes her politics as “cheap” and the Detenu’s mindset variously to be “communal” , “divisive”.
• It also calls the political party which Mufti heads, ie Jammu and Kashmir People’s Democratic Party, as of “dubious nature”. The petition argues that the PDP has formed popularly elected government twice in the State of Jammu and Kashmir, including the second time – in alliance with the present ruling party at the Centre.
• It goes on to disapprove of the symbol of the PDP which is taken from the election symbol of “Muslim United Front” and claims that the colour green used by the party is “radical”.
• The petition states that the Dossier vulgarly describes Mufti as “Daddy’s Girl” and insults her as “Kota Rani”. it also makes unwarranted comments on the marital status of Mufti terming that it did not “last long”.

It is pointed out that none of the charges in the dossier are substantiated, except by quoting some of Mehbooba Mufti’s social media posts.

Even these, it is argued, do not show that Mehbooba Mufti is a threat to public order, which is the basis on which the PSA order has been slapped against her. The petition notes that all these posts are at least six months old, if not older and are therefore "stale".

It is also argued that the language of the dossier, on which the PSA order is based, shows it was prepared with mala fide intent. The grounds for detention specified in the order are "ex-facie illusory to the extent of being vague and irrelevant", which means the relevant officer didn't apply his mind before ordering it, as required by law.

The petition also includes a paragraph-by-paragraph counter to the grounds of detention provided in the detention order against Mufti.