Long Wait For Justice


As the Kashmir lockdown and communication blockade gets into the third month, people expect the court interventions may actually offer some relief. In cases challenging the Kashmir reorganisation, however, the Supreme Court has posted the hearing for November 14. The judicial interventions have already triggered a quick follow-up in case of detention of minors since August 5, reports Tasavur Mushtaq

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The Srinagar High Court premises during the curfew in August 2019. KL Image: Bilal Bahadur

September 30, when normal life continued to remain disrupted for the 57th consecutive day in Kashmir, Chief Justice of India, Justice Ranjan Gogoi, as head of the three-judge special bench hearing the clutch of petitions related to Jammu and Kashmir on an immediate basis, observed there was “no time” to consider the cases. His bench is already embroiled in another constitutional matter involving the Ayodhya title suit case; newspapers quoted the Chief Justice’s observation.

Subsequently, all the Kashmir related cases were transferred to a five-judge Constitution bench comprising Justices NV Ramana, SK Kaul, R Subhash Reddy, BR Gavai and Surya Kant.

“We don’t have time to hear so many matters. We have a Constitution Bench case going on… These petitions will be heard by the Kashmir Bench.” (The ‘Constitution Bench case’ here refers to the Ayodhya appeals entering the 34th consecutive day of hearing on September 30. Two judges of this Bench Justices Gogoi and S ABobde were hearing the J&K lockdown petitions.)

The decision was adversely commented by sections of the media and even lawyers. “Ayodhya is a long-running dispute and Kashmir is the current crisis involving liberty and right to life of more than seven million people,” one female lawyer said, requested she not be named. “Supreme Court has 34 judges and Kashmir cases could have been allotted to different benches for speedy hearings.”

Day One

On October 1, the first day of hearing of petitions challenging the Centre’s unilateral move to abrogate Article 370, the constitutional bench (Kashmir Bench), led by Justice Ramana, granted the government four weeks time to file the counter-affidavits. Now it will be taken up on November 14.

The bench refused the petitioner’s request that not more than two weeks be given for filing of counter-affidavits. “We have to allow the centre and the J&K administration to file counter-affidavit otherwise we can’t decide the matter,” the bench observed.

By the time the court will hear these cases, the Union Territory of Jammu and Kashmir and Ladakh would be two weeks old. The laws would have been changed and the systems and processed shifted to suit the new set-up.

Besides, the apex court put an embargo on the filing of any fresh writ petition challenging the constitutional validity on abrogation of Article 370. “We can’t have an unending process of filing of writ petitions in the matter. Whatever has been filed has already filed. It (filing of fresh petitions) must stop,” the bench observed, directing the Registry against accepting a fresh plea.

The bench rejected the petitioners’ plea that under the new legislation, the state of J&K would become two separate union territories on October 31, and thus there was a need for an urgent hearing and also granting status quo as “hearing the pleas after October 31 would render them infructuous.” The Hindu quoted Justice Ramana’s observation: “This court can put the clock back if we decide the matter in your favour. But we cannot hear the matter without getting a response from the government.”

Two Months

The first day of the Kashmir Bench marked the completion of almost two months of Kashmir lockdown. While the governor’s administration started attempting the restoration of the school education (it did not take off), the preparations for the Block Development Council polls started. At the same time, the state government started making preparations for the yearly durbar move to Jammu for a six-month stint.

There has not been any alteration in the security deployments and the markets are exhibiting the same tensions that were there for last two months. Though the government insists that the restrictions are imposed in some limited areas, the strike continues to be in force. The markets open for a few hours early mornings or late evenings. Public transport is off the roads. The apple growers are yet to harvest the fruit and chances of a major loss to an estimated Rs 10,000 crore economy are feared.

Since a number of people for a varied set of reasons had gone knocking the doors of the highest court in state and centre, there was an expectation that some relief at some level may come. a number of the ongoing

Justice BR Gavai, hearing a group of petitions on restrictions in Jammu and Kashmir, observed that personal liberty “will have to be balanced against the requirements of national security.” The oral observations came in response to an argument by senior advocate Santosh Hegde, who pleaded: “Liberty does not mean mere animal existence. Right to communicate with loved ones is included in the right to liberty.” While the government asserted that 100 per cent landlines are working in Kashmir, Solicitor General Tushar Mehta, appearing for Jammu and Kashmir administration, told a bench that if mobile and internet facility were resorted, then fake WhatsApp messages would be circulated from “across the border” and it might incite violence there.

It all started on August 6, a day after the abrogation of special status and downgrading of Jammu and Kashmir state. Amid stringent clampdown and communication blockade, the apex court emerged as the only route to respite, even for going home to meet families.

Lawyer ML Sharma became the first petitioner in the case, challenging the presidential order on Article 370. Court termed his petition as the “fastest finger first”.

Later, many individuals and political parties filed pleas in the apex court which included National Conference, Peoples Conference, bureaucrat-turned-politician Shah Faesal, CPM, a group of defence officers and bureaucrats, lawyer Soayib Qureshi, Muzzafar Iqbal Khan, a retired district judge in J&K.

At the same time, the prolonged lockdown and detentions led to many habeas corpus petitions being filed in the apex court, as well.

From Mohammad AleemSayed, a young lawyer who was worried about his aged parents in Kashmir to SitaramYechury, the general secretary of the Communist Party of India (Marxist), to see his party colleague Muhammad YousufTarigami and Iltija Mufti’s to see her mother and former J&K chief minister Mehbooba Mufti, the apex court intervened and allowed people to meet in certain cases, under certain conditions.

Azad Plea

Ghulam Nabi Azad, the only former Chief Minister not in jail was flown back twice from Srinagar. The apex permitted him on September 16, to visit four districts of the valley. On his return, Azad said, he would submit a report to the Supreme Court to highlight the plight of the common citizens caused by the “government-made disaster”. He talked of the “environment of fear” and claimed that “thousands of daily wage earners don’t have enough to eat” and alleged the “local administration was being used to repress people”.

The Court granted two more weeks to the Central government to file its response on Azad’s prayer and told SG Tushar Mehta that no further extension will be granted. The matter will be taken up next on October 16.

Before Azad, Sitaram Yechury was the only politician to be allowed into valley since August 5, this too came after the apex court intervened. After his visit to his ailing politburo member, M Y Tarigami, Yechury submitted an affidavit detailing his visit to Kashmir. A bench led by the Chief Justice issued a notice to the Centre to respond to Yechury’s allegation that Tarigami’s health condition had “aggravated” on account of his illegal detention and that

With all roads block, a little girl taking her cycle to a walk. KL Image: Bilal Bahadur

his family was under “de facto arrest”.

“You have moved a habeas corpus petition. That prayer no longer survives as that person — Mohammed YousufTarigami — has himself moved the apex court challenging the abrogation of Article 370. It was a limited question. what further relief do you want,” the bench asked senior advocate RajuRamachandaran, representing Yechury. In this case, the apex court suggested challenging the “validity of the detention order” before the high court.

Bhasin Petition

A petition, on which court has so far adopted a wait-and-watch approach is the one filed by Kashmir Times executive editor Anuradha Bhasin in which she has challenged media restrictions and information black-out.

Filed on August 10, the petition in which Bhasin argued that there has been a clampdown on free speech has been listed six times. Her petition sought a relaxation of restrictions to allow journalists “to practise their profession and exercise their right to report freely on the situation prevailing in J&K after the clampdown.” However, Tushar Mehta told the court that editors of Kashmir Times chose not to publish their newspaper, unlike others.

Later, Bhasin filed an additional affidavit in the court to support her plea for lifting the communication and movement restrictions imposed in Jammu and Kashmir. “…constant monitoring of news reports being sent to bureau offices…disregard for press and movement passes, and the deletion of photos and videos shot by journalists which represent the situation in Kashmir, is causing fear and anxiety amongst journalists,” she argued.

The court on October 1, directed centre to file its response in each of those matters within a week. The matter will be taken up next on October 16.

Dr Farooq’s PSA

A habeas corpus petition filed by RajyaSabha MP Vaiko on September 11, sought Dr Farooq Abdullah’s production before the court. On the eve of it, on September 16, the authorities passed a preventive detention order against Abdullah under the Public Safety Act (PSA). By Monday, September 30, that section of the petition that wanted the court to facilitate Abdullah’s participation in an event in Tamil Nadu on September 15 had become redundant. Further, the court also pointed out that Abdullah has now been detained under the PSA, so the court reasoned that there were no issues alive in the petition and dismissed it.

Dr Sameer Kaul has filed a petition seeking restoration of landlines and high-speed internet in hospitals and medical establishments. He argued that since Jammu and Kashmir state has seen internet shutdowns more than 180 times in the past 7 years, it has earned a “dubious distinction” for India of being a leading country in the world for government-enforced internet shutdowns. This petition, however, was not entertained by the Court. The Court observed that the Supreme Court cannot entertain every petition that comes before it especially when the option to move the High Court has not been exercised. Asserting that the High Court in Jammu and Kashmir is functioning normally, the Court directed the Petitioner to move the High Court.

For Minor Prisoners

On September 20, a three-judge bench led by Justice Ramana in response to a writ petition filed by EnakshiGanguly and ShantaSinha under Article 32 of the Constitution asking the government to submit a status report on “actual detentions, injuries and deaths of children between August 5, 2019, to the present day”, the apex court sought a report within a week from the Juvenile Justice Committee (JJC) of J&K High Court on allegations that a large number of children below 18 had been illegally detained and people were finding it difficult to approach courts.

This petition perhaps was the only one in which some quick follow up took place. The 4-member JJC led by Justice Ali Mohammad Magrey and comprising Justices DS Thakur, Sanjeev Kumar and Rashid Ali Dar submitted its report on October 2. It said 144 children were detained between August 5 and September 23 but most of them were released the same day. However, the report revealed that this list of 144 names also includes children as young as 9, 11, and 13 years of age, detained for causing minor injuries and creating law and order problem.

The JJC, as per reports, has placed reliance on the report submitted by the Director-General of Jammu and Kashmir Police who has refuted media reports alleging transgressions on children while at the same time listing the details of 144 minors who were detained. Of them, 142 have been released, it said.

The Juvenile Justice Committee has also adverted to a report by the Director of the Women and Child Development. As per the same, the number of juveniles detained and lodged in Juvenile Homes in Srinagar and Jammu is 46 – 36 in Srinagar and 10 in Jammu. Out of the 46, 21 are still under detention, 15 in Srinagar and 6 in Jammu.

The apex court took on record the report and asked the petitioner to file a counter-affidavit. The matter has been posted for hearing on October 16.

However, reports appearing in media suggest the number of minors in detention could be more. Days after the JJC reported to teh Supreme Court, 12 habeas corpus petitions were filed in the Srinagar wing of J&K High Court in which the family assert with proofs that they are minor. Of them, according to The Tribune, six are 18, two each are 17 and 16 and one is 15 years of age.

“The first two habeas corpus petitions claiming that the detainees were minors and booked under PSA, which allows detention without any trial up to two years, was submitted on August 27 by residents of Srinagar and Anantnag,” the newspaper reported. “In the four cases already reported by The Tribune, the High Court has taken cognisance while issuing notices and seeking a response from the government authorities.”

Dating the Date

As the apex court gave another four weeks time to centre on October 1, to file its response, Manu Sebastian reports that even after passing of 58 days, the Centre is yet to file its counter-affidavits in the bunch of petitions filed in the Supreme Court questioning its actions. The petitions were admitted and referred to a constitution bench, a month ago, on August 28.

The court had earlier issued notice to the government and asked to file its response in a week. It said all the 14 petitions, challenging the curfew and restrictions imposed in the Valley would be heard on September 16. “We have fixed these petitions as early as possible on September 16. We have done the best we can… We may give some relief then, we don’t know…” Chief Justice Gogoi observed.

On September 16, the Court had directed the Centre and the state of J&K again to file their ‘respective affidavits’ to the petitions.

Finally, when the Kashmir Bench took up the case on October 1, it gave more time to the central government. “When the judges took the matter up again on October 1st, the government’s lawyers received not even a tap on the wrist for failing to prepare a response,” influential British periodical Economist wrote in a scathing critic. “Instead, the judges graciously yielded more time.”

In case of the petition filed by Bhasin, the counter-affidavit stands submitted by Solicitor General Tushar Mehta

Initially, the apex court did not intervene in the immediate aftermath of the abrogation but chose to give enough time to the Centre to stabilise the situation. Later, the Centre, through Attorney General KK Venugopal, told the Apex court that the situation is “sensitive” in Kashmir and cautioned against taking any steps on these petitions, as “whatever statement is made here is being sent to the UN.”

High Court In Focus

While hearing the petition on September 16 by the child rights activists, the “inaccessibility” of the High Court came in sharp focus. The

High Court was asked to respond to the allegations. Terming the allegations “very very serious” the Chief Justice said that he would himself visit Srinagar if required.

Negating the reports, the officials quoted by The Tribune suggested that over 8000 cases were listed from August 5 to September 16. However, they admitted that “due to the strike call by the J&K High Court Bar Association- a body representing more than 2,200 professionals, the disposal of the cases had been affected which was leading to delay.” according to The wire.

But the tensions are about what is happing after August 5.

The state of curfew in October 2019

“Earlier, it would be routine for 2,000-3,000 orders to be issued in the high court in one month,” a lawyer practising in the high court said. “Now it is not even a third of that.”

While everybody would want the High Court to be the closed centre to dispense justice, it is facing its own problems. “, the BBC reported.

The Chief Justice of Jammu and Kashmir High Court, according to The Indian Express forwarded seven names to the Supreme Court Collegium to fill the vacancies but not a single appointment was made. “In March this year, the High Court Collegium, headed by Justice Mittal, forwarded four names to the governor and the same was marked to the Supreme Court Collegium, according to the standard procedure – of two advocates from Jammu, Rajnesh Oswal and Rahul Bharti, and two advocates from Srinagar, Moksha Kazmi and Javaid Iqbal Wani,” The Indian Express reported. “And in July, another set of three names – Registrar General of Jammu and Kashmir High Court Sanjay Dhar and two others from the lower judiciary Vinod Chatterji Koul and Puneet Gupta – was sent.”

The vacancies are preventing quick disposal especially when one of the nine judges is retiring later November and another is on leave on health grounds.

Next Date

Regardless of how the High Court manages to sail through especially when it issues of liberty are involved, the focus, however, remains on November 14. The Supreme Court intervention on the cases regarding Article 370 and downgrading the state have far-reaching consequences for India’s democracy and federalism.


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