Kashmir's Year Of Angst And Supreme Court's Year Of Abdications: One Year Of Article 370 Changes

A communication blackout was imposed in the region, political leaders were detained indiscriminately, and reports of intense deployment military and paramilitary forces surfaced in the media.  

With this move, the country was divided into two factions; while many were overjoyed at the prospect of "One Nation, One Constitution", several others flayed it as a breakdown of the principles embedded in our Constitution. The only thing amiss in the noise that followed was the silence from the stakeholders themselves, who had been virtually shrouded in darkness. As a journalist who was present in Jammu and Kashmir, when the fateful event took place, remarked, "It was as though we were fish, electrocuted and then lying still in dark waters".

PARLIAMENT'S APPROACH TO THE AMENDMENTS

It is ironic that the "constitutional surgical strike", as it has been called, had taken place without the concurrence of the leaders and the people of Jammu and Kashmir. A population of 9 million has been virtually cut off from participating in the debate leading up to the decision that is supposedly for their own good. This is reminiscent of colonial times wherein rules and regulations had been imposed upon us by the British administration, as we were "rendered incapable of holding civilized debates".

On 5^th August, 2019, the President of India, Ram Nath Kovind, under Article 370(1), promulgated the Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) which superseded the Constitution (Application to Jammu and Kashmir) Order, 1954, thereby allowing for the application of all provisions of the Constitution of India to the then State of Jammu and Kashmir. It further nullified Article 35A and made changes to the interpretation clauses in Article 367 by stating that the term "Constituent Assembly" would read as "Legislative Assembly of the State" and "Government of J&K" as "Governor of J&K".

This was followed by Presidential Notification C.O. 273 to amend Article 370, rendering its substantively inoperational. The issue which arose with the acts of the President was that the amendment of Article 370 under could only have been done as per Article 370(3) read with Article 370(1) on the recommendation of the J&K Constituent Assembly. However, as the Constituent Assembly had been long dissolved, C.O. 273 took advantage of the State being under the Governor's Rule as well as the recently promulgated C.O. 272, and bypassed the procedural route which required the concurrence of the elected representatives of the region by substituting the concurrence of the Governor for that of the State Government.

These changes called for a nuanced debate in the Parliament; however, the house proceedings were fuelled by jingoistic statements and tall claims, such as the repeal of special status will end terrorism and will bring development to the area (there is no evidence showing fulfilment of these claims a year on).  The passage of the J&K Reorganization Bill taking away the statehood of J&K was followed by chants of "Bharat Mata Ki Jai" and "Vande Mataram".

This backdoor entry used for the amendments is problematic because it subverted the principles of democratic participation as there was no question of seeking the concurrence of the elected representatives who had been placed in detention or house arrest. For instance, National Conference leader Farooq Abdullah was absent from the deliberations as a result of his detention; a fact which came to light only at a later point of time as Home Minister Amit Shah said in the floor of the house that Abdullah had not attended the House proceedings on his own accord and had not been detained.  

Multiple petitions were filed before the Supreme Court, not only challenging the Constitutionality of C.O. 272 & C.O 273, but also alleging gross violations of Constitutional rights in J&K. The Petitioners argued that the powers under Article 370(1)(d) could not be invoked in order to dilute the very same Article. Further, it was argued that the act of destructing the status of the State of Jammu and Kashmir, "without the concurrence, consultation or recommendation of the people of that State, acting through their elective representatives", amounted to an "overnight abrogation of democratic rights and freedoms guaranteed to the people of the State of Jammu and Kashmir upon its accession". Another point which was raised was that there existed a violation of the quasi-federal balance – "The principle of pluralistic federalism would be set at naught if one of the two parties to the federal relationship (i.e., the Union) can unilaterally amend the terms of their relationship, without even passing the rigours of the amending process under Article 368".

THE JUDICIAL RESPONSE TO PETITIONS CHALLENGING THE CONSTITUTIONAL AMENDMENTS, RESTRICTIONS AND DETENTIONS

Apart from the challenges to Article 370, there were petitions seeking restoration of communication/internet services, and habeas corpus pleas against detentions under J&K Public Safety Act. The pertinent question to ask at this juncture is - has the Supreme Court responded to these issues with the alacrity they deserved?

Final hearings in Article 370 pleas are yet to take place; habeas corpus pleas were kept in limbo till the executive itself decided to revoke the detention orders on their own accord; and the Court delegated the decision-making in the pleas seeking restoration of communication services to the executive.

From the very first hearing wherein Attorney-General KK Venugopal submitted to the Court that the Central Government was keenly reviewing the situation and the least amount of inconvenience would be caused to the residents, to the most recent proceeding where the Court closed habeas corpus plea of senior Congress leader Saifuddin Soz at the mere ipse dixit of the Government that he was not under detention, we are witnessing a pattern of the judiciary unquestioningly accepting the claims of the executive without any verification. 

Supreme Court's Response to Challenges to Abrogation of Article 370

In wake of the amendments, many petitions were filed before the Supreme Court, praying that the Presidential Orders issued under Article 370, repealing the special status of the Jammu and Kashmir, and the J&K (Reorganisation) Act, 2019, be declared as unconstitutional. One of the pleas averred that it was "striking at the heart of the principles on which the State of J&K had integrated".  

The hearing commenced on December 10, 2019 - four months after the repeal of the J&K special status - before a Constitution Bench comprising Justices N V Ramana, Sanjay Kishen Kaul, R Subhash Reddy, B R Gavai and Surya Kant.

During the course of hearings that took place before the Constitution Bench, some of the petitioners sought for the reference of the matter to a 7-judge 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 2^nd March, 2020, the Constitution Bench held that there was no need to refer the matter regarding the challenging to the Presidential Orders issued under Article 370 to a larger Bench. 

Since 2^nd March 2020, 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 being 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 early hearing on the pleas on Article 370, making one wonder if the Court is giving this constitutional issue the seriousness it deserves.

Supreme Court's Response to Habeas Corpus Pleas and Juvenile Detention

In the days leading up to and after the stripping off the special status of Jammu and Kashmir, many well-known politicians such as Farooq Abdullah, Mehbooba Mufti, Omar Abdullah, MY Tarigami, Mian Abdul Qayoom, Saifuddin Soz, Sajjad Lone, amongst others, were detained and/or placed under house arrest as per the provisions of the J&K Public Safety Act, 1978.

One of the first habeas corpus pleas had been filed by General Secretary of the Communist Party of India (Marxist) Sitaram Yechury, challenging the detention of  MY Tarigami, who was an MLA in J&K till the repeal of its special status. The SC's response to this plea was befuddling. In a manner which twisted the meaning of the writ of habeas corpus - by which the Court calls for the presence of detenu  - the SC did not bother to probe the State regarding the reasons of the detention and instead "allowed" Yechury to travel to Kashmir so as to meet the Tarigami and to ascertain his whereabouts and medical welfare. Further, Yechury was directed to not indulge in political activities during his visit.

In the plea filed 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, asked, "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 flippant statements cast a  shadow on the grave matter concerning a person's fundamental right to life and personal liberty.

Judicial Abdication In Kashmir Habeas Petitions

A similar disdain for the urgency that must accompany a habeas corpus plea was exhibited during the hearing for Omar Abdullah's plea, filed by his sister Sara Abdullah Pilot. While the counsels for the Petitioner pressed on the importance of habeas corpus, 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". 

In the appeal filed on behalf of Mian Abdul Qayoom, after constant adjournments, the Central Government itself conceded to releasing Qayoom, merely a week before his year-long detention period expired. Therefore, not only was there no decision taken by the Court on the illegality of the detention under the provisions of the Public Safety Act, but it allowed for the problematic judgements rendered by the Jammu and Kashmir High Court, upholding Qayoom's detention, to remain as precedents for future detentions under PSA.

Out of all pleas, the most astonishing was the disposal of former Union Minister Prof. 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 first 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 the video, Soz was seen shouting, "Let Supreme Court see how I am being detained".

Even after media reports raising a strong question mark over the claims of administration regarding Soz, the SC has not taken any effort to seek accountability from the executive in the matter.

The Supreme Court's responses in the aforementioned pleas contradict settled precedents on the writ of habeas corpus (termed a "writ of the highest constitutional importance being a remedy available to the lowliest citizen against the most powerful authority"),  which enjoin the Court to act swiftly and promptly to secure the liberty of the citizen.

A PIL was also filed 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 referred to multiple media reports, including international media, to argue that several juveniles were being detained illegally by security forces. In October, the J&K Juvenile Justice Committee submitted a report in the SC, admitting that 144 juveniles were detained since August 5, 2019, but claimed that all of them were detained after following due process.

The petitioners highlighted a glaring legal lacuna in the report submitted by the Juvenile Justice Committee - that the provisions of Juvenile Justice Act prohibit preventive detention of juveniles. The petitioners stated that the JK Juvenile Justice Committee merely copied the report of the police, without any independent application of mind.

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.

The Court said that it had more faith in the report of the Committee comprising HC judges (which had merely forwarded the report of the police a month ago), than the reports by international media.

"It would hamper the image of the judiciary if this bench was to go into it", the bench orally remarked.

Thus, in a manner shockingly casual, a matter raising the issue of detention of juveniles was closed.

Supreme Court's Response to the Challenges to Restrictions on Internet/Communication Services 

The most astonishing chain of events unfolded in the case of Anuradha Bhasin v. Union of India (2020) and its aftermath. The plea had been filed by the Executive Editor of Kashmir Times, challenging the curbs on freedom of the press in the wake of the complete shutdown of internet and telecommunication services, as well as severe curbs on the movement of photojournalists and reporters.

It was notably contended that "the information blackout set in motion is a direct and grave violation of the right of the people to know about the decisions that directly impact their lives and their future". Freedom of press and the Right to Know under Article 19(1)(a) were referred to, so as to convey to the Court that the communication lockdown was unconstitutional and was an indirect means of impinging upon press freedom as well as the citizens' right to know about governmental decisions and actions.

The pleas were first referred to a bench headed by Justice NV Ramana. Following multiple adjournments, on January 10, 2020, the judgment on the matter was pronounced, nearly two months after the judgment was reserved on November 27, 2019.

Meanwhile, the internet shutdown in the region crossed 150 days, which 'The Washington Post' termed the longest ever in a democracy.

The judgement remains a sermon on the importance of the medium of the internet in facilitating freedom of speech and expression, as well as freedom of trade and commerce under Articles 19(1)(a) and 19(1)(g). While criticizing the indefinite suspension of the internet as impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017, the Court ultimately directed the J&K Administration to periodically review the internet shutdown orders, publish them in public domain and "consider" allowing the functioning of certain websites.

Post this, orders were issued and the functioning of internet services was limited to 2G speed. However, this proved to be problematic as the imposition of national lockdown due to the COVID-19 pandemic entailed all business, e-commerce services, education services being conducted over the internet. Consequently, a plea was filed by Foundation for Media Professionals in April 2020, seeking for the restoration of 4G speed internet services in Jammu and Kashmir.

Yet again, the Supreme Court refrained from passing positive orders and directed the Centre to constitute a "Special Committee" headed by the Secretary of the Union Ministry of Home Affairs to examine the issues raised by the petitioners. In layman terms, the very authority which had passed orders for the restrictions was asked to adjudicate on the necessity of the same. The judiciary effectively passed the baton to the executive.

Despite this judgement, multiple orders were passed by the J&K Administration, extending the restrictions on internet speed. Soon, a contempt petition was filed alleging failure of government officials in constituting a "Special Committee" to review the restrictions as per the Supreme Court order. This petition itself took almost a month to be listed for hearing. When the contempt plea was finally taken up, the Attorney-General submitted that the Special Committee had already been formed and that the decision had been placed before the Court in a sealed cover.

A few days ago, the MHA filed a Counter-Affidavit, stating that the Special Committee had decided against restoring 4G internet in the region for now and will review its decision after two months. Till date, the Court as well as the government have failed to explain how the reduction of internet speed will curb terrorism. The Court's reluctance to probe and verify the claims of the government came to the fore in this case as well.

CONCLUSION

In the past year, the people of Jammu and Kashmir have been relegated to second-class citizens, who need to be monitored all the time, who need to have their ability to communicate via internet restricted, who need to be told what is right and what is wrong for them. The "social contract" that they have signed with the State has been violated, along with the trust imposed by the people in the State.

As clear from the instances narrated above, the judiciary has remained a mute bystander with respect to the developments in J&K, except for making hollow statements regarding the return of normalcy. 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 fo 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 Court during this period, scrutinizing the State's action on the touchstone of Constitution. The judiciary's abdication of its duty and its entrustment of the same to the executive is emblematic of a Faustian bargain, where not only are the ideals of the Constitution at stake, but also the rights of the common citizen.

As AG Noorani remarks poignantly in his article criticizing the decline of the importance of habeas corpus law, "This too shall pass. But, like the 1976 case [ADM Jabalpur v. Shrikant Shukla], this episode will ever remain a stain on the Supreme Court's reputation. The people of Kashmir will never, never forgive it".