Kashmir: Omar Abdullah’s Detention Is Illegal And Unconstitutional

Omar Abdullah, former Chief Minister of Jammu & Kashmir, has been in detention since August, 2019, under the J&K Public Safety Act. Let it be clear that every moment of his detention, as well as the detention of other Kashmiri leaders, 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 3-page dossier served on him it is said he made statements to the Kashmiri public against the revocation 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, and is hardly a valid ground for detaining him. There is no allegation that Omar Abdullah ever gave a call for violence or organized violence. In fact his entire political record shows that he has always abided by India’s Constitution.

Criticizing 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, as laid down by the Constitution Bench decision of the Supreme Court in Romesh Thapar vs State of Madras in 1950, and in 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 State of Assam, both delivered in 2011, and 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.

I have explained the legal position in several articles of mine e.g. ‘Judiciary must stand firm’ (dailypioneer.com), ‘The litmus test of free speech’ (thehindu.com), ‘Sharjeel Imam’s speech not a crime—the FIR should be quashed’ (week.in), and ‘Why Kashmiri students calling for azadi is no crime’ (dailyo.in).

In Ghani vs Jones (1970) 1 Q.B. 693 (709) Lord Denning observed: “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, AIR 1978 SC 597 (vide para 99), and thereafter in Govt of Andhra Pradesh vs P. Laxmi Devi (see online para 90). Hence it is the law of the land in India too.