SC asks J&K administration to place before it orders imposing restrictions

Why no reply on NRI businessman wife’s plea against his detention

17/10/2019

NEW DELHI, Oct 16: The Supreme Court on Wednesday asked the Jammu and Kashmir administration to place before it the administrative orders imposing communication and other restrictions in the state following the abrogation of provisions of Article 370.
A bench headed by Justice N V Ramana questioned Solicitor General Tushar Mehta, appearing for the administration, as to why the administrative orders have not been filed yet in the court.
"You had passed some orders. Why you have not filed it?", the bench, also comprising justices R Subhash Reddy and B R Gavai, asked Mehta. "Is it purposefully done?"
Mehta told the bench that they had filed a reply earlier in the matter but now, there is a change in circumstances as far as restrictions are concerned.
"After filing of the affidavit, there is change in circumstance on the ground. Some restrictions have been removed," he said. He said he would place before the top court the administrative orders relating to restrictions for the perusal of the bench only.
"We will place them before the Supreme Court. Nobody can sit in appeal of administrative decisions taken in national interest. Only the court can look into it and certainly not the petitioners," he told the bench.
Advocate Vrinda Grover, appearing for petitioner and Executive Editor of Kashmir Times AnuradhaBhasin, told the bench that they have filed a rejoinder and said that the Centre and J&K administration have not yet placed those orders and notifications before the court.
Mehta told the bench that original prayer in Bhasin's petition was regarding restrictions and media freedom but now they were expanding the scope of their prayer. Grover said in their petition, they have also made a prayer regarding placing of orders imposing restrictions in the state.
During the arguments, the bench took exception that some of the advocates appearing in the matter have raised their voice and said, "It is not proper for lawyers to shout in the court. It is not proper."
When an advocate appearing for one of the intervenors said that J&K has not complied with the earlier directions of the court to place the restriction orders before it, the bench told Mehta, "Mr Solicitor General, please keep all those orders ready".
When a lawyer appearing for one of the petitioners told the court that J&K must justify why they are not sharing the restriction orders with them, the bench said, "He (Mehta) has assured us that he will produce those orders".
The bench has posted the matter for further hearing on October 25. When the bench referred to media reports that mobile services have been restored in the valley, the counsel for one of the petitioners said only BSNL postpaid mobiles were operational but the SMS service was stopped by authorities on Tuesday.
The apex court was hearing the petitions which have raised the issue of physical restrictions and communication blockade in Jammu and Kashmir following abrogation of provisions of Article 370. The Supreme Court on Wednesday asked the Jammu and Kashmir administration as to why it has not filed a reply on a plea by the wife of a Malaysia-based NRI businessman challenging his detention following abrogation of provisions of Article 370.
A bench headed by Justice N V Ramana observed that the matter relates to "personal liberty" and the J-K administration should have filed its reply on the plea.
"Why you (J-K administration) have not filed the reply?," said the bench, also comprising justices R Subhash Reddy and B R Gavai, adding, "This is a matter regarding personal liberty. You should have filed the reply by yesterday".
Solicitor General Tushar Mehta, appearing for the J-K administration, said he would file a reply on the petition during the day itself.
The top court was hearing a plea filed by AsifaMubeen, the wife of Mubeen Ahmad Shah, seeking quashing of the August 7 order of detention along with the grounds of detention under section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978.
Senior advocate Raju Ramachandran, appearing for the petitioner, told the bench that superintendent of Agra jail, where Mubeen Ahmad Shah has been kept, has filed his reply on the petition and said the health of the businessman is fine.
The bench, however, said the affidavit filed by the jail superintendent is of October 4 and asked Mehta to tell the officer concerned to file a fresh report in this regard.
The apex court has posted the matter for hearing on October 24. On September 20, the top court had asked the J-K administration to respond to the plea, which has sought a direction to authorities to produce the businessman before the court. In her plea, she has said that her husband is currently lodged at Agra Central jail and has been "wrongfully deprived" of liberty.
"The detenu (Shah), a senior and well respected citizen of India, a qualified doctor and leading NRI businessman based in Malaysia, with a serious medical illness, has been illegally deprived of his life and liberty for more than 40 days since August 5, 2019," the plea has said.
The petitioner has said that Shah had come to Srinagar on April 18 to attend the last rites of his sister-in-law and continued to stay there since his father-in-law was unwell and passed away in July. The plea said since Shah was not keeping well during that period, he was admitted to a hospital in Srinagar in May.
"In the intervening night of August 4-5, 2019, the detenu (Shah) was arrested illegally without any warrant from his residence at Buchwara, Dalgate, Srinagar and taken to the local police station. At the time of the arrest, the detenu was not even informed about reasons and grounds of his arrest," it has said.
The plea has said that Shah is suffering from multiple ailments, including acute renal problem which has aggravated during the course of lodgement at Agra Jail.
It has said the detenu has no criminal antecedents and has an "impeccable and unblemished record as a leading businessman of the valley."
It has said that grounds, on which the detention was ordered, "are not grounds within the contemplation of the Public Safety Act, 1978 rendering in sequel thereto the detention of the detenu illegal and unconstitutional and hence liable to be quashed."
"The impugned order of detention is vitiated in law for the grounds of detention of the detenu on the face of it are too vague and cryptic and do not answer any of the imperatives as contemplated under the J&K Public Safety Act, 1978 and as such is liable to be quashed," it said, adding that grounds of on the face of it are "illusory".
It said the detention "violates with impunity the constitutional guarantees under Article 21 of the Constitution of India" of the detenu and is arbitrary and unsustainable in law.

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