Omar Abdullah, former chief minister of Jammu and Kashmir (J&K), has been in detention since August 5, 2019, under the Public Safety Act. I submit that every moment of his detention, as well as the detention of other Kashmiri leaders such as Farooq Abdullah and Mehbooba Mufti, has been a gross violation of the right to liberty enshrined in Article 21 of the Constitution of India.
The allegations against Omar are totally frivolous. In a three-page dossier served on him, it is said he made statements to the Kashmiri public against the dilution of Articles 35A and 370. It is also alleged that “his capacity to influence people for any cause could be gauged from the fact that he was able to convince the electorate to come out and vote even during peak militancy and poll boycotts”.
All this is ipse dixit (a dogmatic and unproven statement) and is hardly a valid ground for detaining him. There is no allegation that Omar Abdullah ever gave a call for violence or organised violence. In fact, his entire political record shows that he has always abided by India’s Constitution. Criticising the government is no crime, as it is a democratic right protected by the freedom of speech in Article 19(1)(a) of the Constitution. This was laid down by the constitution bench decision of the Supreme Court in Romesh Thappar vs State of Madras in 1950 and several other decisions of the court thereafter.
As held in the historic decision of the US Supreme Court in Brandenburg vs Ohio (1969), which still holds the field, free speech can only be prohibited by the state when “it is directed to incite or produce imminent lawless action”. This decision of the US Supreme Court has been followed in two decisions of the Indian Supreme Court, Arup Bhuyan vs State of Assam and Sri Indra Das vs the State of Assam, both delivered in 2011. Hence, it is the law of the land in India too. There is no allegation that Omar said anything to incite or produce imminent lawless action.
Also Read: With Detention Orders Like These, the State in Kashmir Is Itself Breaking the Law
I have explained the legal position in articles published in The Daily Pioneer, The Hindu, The Week and Daily O.
In Ghani vs Jones (1970), Lord Denning observed that “a man’s liberty of movement is regarded so highly by the laws of England that it is not to be hindered or prevented except on the surest grounds”, and this statement has been quoted with approval by the seven-judge constitution bench judgment of our Supreme Court in Maneka Gandhi vs Union of India (para 99) and thereafter in Govt of Andhra Pradesh vs P. Laxmi Devi (para 90). Hence it is the law of the land in India too.
Omar Abdullah, as well as other Kashmiri leaders like Farooq Abdullah, Mehbooba Mufti, Shah Faesal and Yasin Malik, must immediately be set free by the Supreme Court if it wishes to enjoy the confidence of the people as a guardian and protector of their fundamental rights enshrined in the Constitution.
Justice Markandey Katju is a former judge of the Indian Supreme Court.
