Article 370 and Supreme Court

Tajamul Islam

Taking such a step as abrogating J&K’s special status and turning it into a union territory was not possible without the suppression of liberties and rights guaranteed by the Constitution. To contain protest and the rage of J&K’s people, especially Kashmiris, against the unilateral decision, a communication blackout was imposed in the region and political leaders were detained indiscriminately including three former chief ministers. The whole region was put under strict curfew with heavy deployment of armed forces. Everything came to a standstill with restrictions on civil and political liberties.
At that time the only hope before everyone was the judiciary, which is regarded as the guardian and protector of rights, and the last resort against unreasonable and unjust executive and legislative actions. The judiciary is also required to act independently, impartially, and in a free and fair manner as mandated by the principles of natural justice, principles that are followed by judiciaries of all civilised and democratic nations.

Constitutional Bench
Having strong faith in the judicial system, several petitioners went to the Supreme Court to challenge the overnight abrogation of the democratic rights and freedoms guaranteed to the people of Jammu and Kashmir.
The petitions prayed that the Presidential Order repealing the special status of Jammu and Kashmir, and the J&K (Reorganisation) Act, 2019, be declared as unconstitutional. One of the pleas averred that the abrogation was “striking at the heart of the principles on which the State of J&K had acceded to the Union of India”.
The hearing commenced on December 10, 2019 — four months after the repeal of the special status — before a Constitution Bench comprising Justices NV Ramana, Sanjay Kishen Kaul, R Subhash Reddy, BR Gavai and Surya Kant. During the course of hearings, some of the petitioners sought for the reference of the matter to a 7-judge Constitution Bench in light of the contrasting opinions expressed by two coordinate benches of the Supreme Court in the cases of Prem Nath Kaul and Sampath Prakash. Vide a judgement dated 2nd March, 2020, the Constitution Bench held that there was no need to refer the matter to a larger Bench.
Since then, there have been no signs of the listing of the pleas on Article 370. From the last week of March, the SC went into a virtual lockdown, in view of the Covid-19 pandemic, and only urgent matters were taken up via video conferencing. Even though the SC has started hearing Constitution Bench matters via video conferencing from the second week of July, there is no indication yet of when the hearing on the pleas on Article 370 will happen, making one wonder if the court is giving this constitutional issue the seriousness it deserves.

Habeas Corpus
In a plea ?led by Iltija Mufti, the daughter of former J&K Chief Minister Mehbooba Mufti, ex-CJI Ranjan Gogoi, in response to the request for permission to travel freely, had remarked, “Why do you want to move around? It is very cold in Srinagar.” Though permission was granted and Iltija Mufti was allowed to visit her mother, such ?ippant statements cast a shadow on the grave matter concerning a person’s fundamental right to life and personal liberty.
In the plea of Umar Abdullah (Former CM of J&K), Justice Arun Mishra continually adjourned the plea; at one point, he even stated, “You have waited for so long; a delay of a few more weeks won’t make a difference.”
The most astonishing was the disposal of former Union Minister Saifuddin Soz’s habeas corpus petition. The Supreme Court, without ascertaining the veracity of the submission of the Centre that no detention order had been passed against Soz in the ?rst place, disposed of the habeas corpus plea. A few hours post the hearing, a report by NDTV emerged, claiming that Soz was still under detention, contrary to the claims of the administration. In a video that went viral on social media, Soz was seen shouting, “Let Supreme Court see how I am being detained.”

Juvinile Detentions
A PIL was also ?led alleging illegal detention of children by security forces in Jammu and Kashmir, in wake of the revocation of Article 370 and the bifurcation of the State. The petitioners cited multiple media reports including international media reports. The reports were accepted by the J&K Juvenile Justice Committee but it claimed that all the 144 juveniles in custody were detained after following due process.
Seemingly in agreement with the petitioners’ contention, the SC on November 5, 2019, asked the Committee — which consists of 4 HC judges — to submit a fresh report, after setting aside the previous one. Remember, by this time three months had elapsed since the blockade in J&K.
A month later, on December 13, 2019, the bench closed the case, accepting the fresh report of the Committee that there were no illegal detentions of children in J&K.
Thus, in a manner shockingly casual, a matter raising the issue of detention of juveniles was closed.

Restrictions on Internet
Another astonishing chain of events unfolded in the case of Anuradha Bhasin v. Union of India (2020) and its aftermath. In this landmark judgement the Supreme Court declared access to internet as a fundamental right, thus restoring some faith in the judiciary. Since then, petitions have been filed for the restoration of high speed internet (4G) to allow medical professionals to save precious lives and allow students to continue their education through online mode amid the Covid-19 pandemic. But the government’s contention is that high speed internet is a threat to national security — a bogus argument as terrorism related activities have continued even without internet and will continue to happen till some political solution of Kashmir is arrived at. Punishing the whole population (8 million) for the presence of less than 300 militants is something the court should look at seriously.
As clear from the instances narrated above, the judiciary has remained a mute bystander with respect to the developments in J&K. Last week, the court expressed that Kashmir has been a troubled area and that “it is time for all wounds to be healed and look to the future within the domain of our country”. The real healing for wounds can happen only through justice and reconciliation, for which the courts can play a major role by actually adjudicating issues affecting the rights of citizens. However, there has not been a single effective order passed by the Supreme Court during this period, let alone scrutinise the state’s actions on the touchstone of the Constitution.

The writer is a student of Law at University of Kashmir. [email protected]


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