Abrogation of Article 370 was challenged before the Supreme Court
Abrogation of Article 370 was challenged before the Supreme Court
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Turning the clock back: How the Supreme Court has dealt with cases arising out of last year’s abrogation of Article 370

One year on, we ask the question: Did the Supreme Court do complete justice, or was the decision of the government to scrap Article 370 fait accompli for the people of Jammu & Kashmir and Ladakh?

Shruti Mahajan

Exactly one year ago, in a swift and somewhat foreseeable move, the Central government changed the special status of the erstwhile State of Jammu & Kashmir.

Executive orders passed to amend Article 367 to facilitate the abrogation of Article 370, and ultimately to scrap Article 370 itself, were passed on August 5 and 6 last year. Without wasting much time, a Bill to bifurcate the State into two Union Territories was tabled and passed in Parliament, and in no time, received Presidential assent.

Voting on the Jammu and Kashmir Reorganisation Bill, 2019 in the Lok Sabha
Voting on the Jammu and Kashmir Reorganisation Bill, 2019 in the Lok Sabha

The move to scrap Article 370 was followed by en masse detentions of opposition politicians, activists, and lawyers in the region. Further, a strict lockdown and a communications blackout were imposed, keeping the citizens of the area in the dark over the developments taking place in Delhi.

While most people lauded the Modi government for following up on its manifesto promise to abrogate Article 370, a significant minority questioned the mode and manner in which this decision was taken and executed. And so, various aspects of the BJP government's exercise came under challenge before the Supreme Court.

Did the Supreme Court do complete justice, or was the decision of the government fait accompli for the people of Jammu & Kashmir and Ladakh?

Petitions challenging abrogation of Article 370

The first challenge to the Presidential order was filed on August 9. A plethora of petitions filed by MPs from the National Conference, Kashmiri citizens, former bureaucrats, and various organizations followed.

While some petitioners brought up the requirement of consent from the Constituent Assembly for abrogation of Article 370, others questioned the validity of the President’s Rule that was in effect when the abrogation was made. Some pleas also go back to the Instrument of Accession, while some highlight the Supreme Court’s ruling of 2018 holding that Article 370 had gained a status of permanence.

Many petitions had also challenged the Jammu and Kashmir State Reorganization Act, by which the State was bifurcated into two Union Territories with effect from October 30.

On August 28 last year, the Supreme Court issued notice in the pleas despite vigorous resistance from Attorney General for India KK Venugopal and Solicitor General for India Tushar Mehta, who argued that issuance of notice would have cross-border implications. The Court, however, proceeded to seek the government's response and decided that a five-judge Constitution Bench would look into the issue.

Special Kashmir Bench

A five-judge Constitution Bench was set up on September 29 to hear the challenge to the abrogation of Article 370 and the State’s bifurcation. This Bench is headed by Justices NV Ramana and comprises Justices Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai, and Surya Kant.

Constitution Bench set up to hear challenge to abrogation of Article 370
Constitution Bench set up to hear challenge to abrogation of Article 370

A special three-judge Bench of Justices NV Ramana, R Subhash Reddy, and BR Gavai was entrusted with hearing all the other petitions arising out of this move, including some Habeas Corpus pleas and even the matters pertaining to media restrictions and the communications blackout.

Lockdown and communications blackout

Kashmir Times Editor Anuradha Bhasin, along with a handful of other petitioners, had questioned the restrictions that were imposed not only on the media, but also on movement and general communications in the region.

The hearings in the case spanned over the months of October, November, and December of 2019. During this time, the government told the Court that the people of the region were benefitting from the application of Central laws to the valley, and submitted that restrictions were being lifted in a phased manner.

On January 10 this year, the Supreme Court delivered its judgment, recognising the Constitutional protection granted to the freedoms of expression and profession through the internet as a medium. However, precious little translated to the ground.

Senior Counsel Kapil Sibal says that despite the Court passing a "pathbreaking judgment", it is not being implemented.

Kapil Sibal
Kapil Sibal
"The Court passed a wonderful judgment in the sense that they declared the law, and to that extent, it was a pathbreaking judgment. But the fact is that the law was never implemented."
Kapil Sibal

Almost seven months since this ruling, there is a contempt petition pending before the Supreme Court which alleges that the J&K authorities have not complied with the January 2020 judgment.

Apart from its implementation, the judgment has been criticised for leaving the question of validity of the restrictions to be assessed by a review committee set up by the same government that is imposing the curbs in the first place.

The end result is that a large part of the Jammu & Kashmir region is still facing internet restrictions, at a time when the country is reeling under a pandemic. As on date, the restrictions on internet speed in parts of the UT of J&K stand extended till August 19, while many parts are placed under curfew on August 4 and 5.

Will it be too late to "turn the clock back"?

“The Supreme Court can always turn the clock back”, was an assurance that came from Justice Sanjay Kishan Kaul on October 1 last year, when the Court granted the government four weeks’ time to respond to the batch of petitions on Article 370.

This would mean that the bifurcation of the State into Centrally-administered Union Territories would be given effect on October 31, before the matter could be heard by the Court.

Between that day and today, many steps have been taken by the government to further concretise the bifurcation, even as the calls for reinstatement of Jammu & Kashmir's statehood get louder.

While the matter remained pending, a host of administrative, executive, and legislative changes stand effected in the Union Territories of Jammu & Kashmir and Ladakh.

Senior Counsel Dinesh Dwivedi believes that these are "cosmetic changes, only on paper", and that not much has changed on the ground.

With all these changes having taken place, is the hearing before the Court left merely as an academic exercise? How far can the Supreme Court actually turn the clock back?

Dwivedi says that a complete restoration of the situation pre-August 5, 2019, is possible.

"Suppose the Supreme Court holds the entire exercise to be completely ultra vires the Constitution, then it is a nullity. And if it is a nullity, then status quo ante can be restored. The Supreme Court has, in a lot of cases, under Article 356 done that because the actions of the government were found to be ultra vires."
Dinesh Dwivedi

Habeas Corpus petitions – problematic handling?

The Habeas Corpus petitions filed in relation to the detention of political leaders and lawyers were treated with anything but urgency by the Supreme Court.

Pleas were filed for NC leaders Dr. Farooq Abdullah, Omar Abdullah, CPI(M) leader Mohammad Yusuf Tarigami, Congress leader Saifuddin Soz, PDP President Mehbooba Mufti, and Jammu & Kashmir High Court Bar Association President Mian Abdul Qayoom, to name a few.

Some of the Political detenues of Kashmir whose detention was challenged before the Supreme Court
Some of the Political detenues of Kashmir whose detention was challenged before the Supreme Court

Dwivedi says that the Apex Court ought to have shown some promptness in these matters.

"The Supreme Court should have been a little more energetic and prompt in its dealing with habeas corpus petitions. People are there in jail without trial... otherwise what is the point of having preventive detention laws and Articles 21 and 22 which provide for representation and principles of natural justice to be applied?"

Dinesh Dwivedi

No questions to the government on detentions

In the Habeas Corpus petition filed on behalf of former Chief Minister Farooq Abdullah, filed by MDMK leader Vaiko, the Court disposed the petition in light of the government officially detaining Abdullah under the Public Security Act (PSA), a legislation till then used only against terrorists, separatists and miscreants. The PSA was slapped against Abdullah shortly before the hearing was due in the Supreme Court. Abdullah was finally released from house arrest in March, 2020.

After many adjournments, the Court finally heard the Habeas Corpus filed for Congress leader Saifuddin Soz and decided to take the government’s submission on face value. According to the government, Soz was not under any restrictions or detention. However, reports emerged shortly thereafter showing Soz being manhandled by security personnel and prevented from talking to the press.

Saifuddin Soz one day after his Habeas Corpus plea was disposed of by the SC
Saifuddin Soz one day after his Habeas Corpus plea was disposed of by the SCPTI

This trend is worrisome, Sibal says, and questions the basis for the Court to choose to believe the government's version in a case concerning someone's personal liberty.

"How does the Court accept what the government says and reject what the petitioner says, what is the basis of that? These are two versions, why should one be believed and other not believed, what is the basis?"
Kapil Sibal

Advocate Vrinda Grover opines that the impunity with which the government deals with detention matters under the PSA can only be curbed by the Court.

"The impunity with which the right to life and liberty of persons from Kashmir is violated including through arbitrary detention under PSA, can only be curbed by the Courts holding prompt and effective hearings which seek accountability for State action to bring it in compliance with Constitutional principles."

Vrinda Grover

Long adjournments

The sense of urgency required to be attached to Habeas Corpus petitions was often found missing, with hearings in these pleas getting adjourned for want of an appropriate bench or for the government to file its replies. The Habeas Corpus petition filed for former Chief Minister Mehbooba Mufti, who is still under house arrest one year since the abrogation, is yet to be taken up.

Habeas Corpus writ filed for Mehbooba Mufti by her daughter in February 2020 remains pending still
Habeas Corpus writ filed for Mehbooba Mufti by her daughter in February 2020 remains pending still

In matters concerning Habeas Corpus, it is the "duty" of the Court to examine the facts and material weighed by the detaining authority, the Supreme Court's 1975 judgment in Khudiram Das v. State of West Bengal case says.

"It is, therefore, not only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction."

What was observed in the Apex Court's treatment of these Habeas Corpus Writs was a departure from the well-settled principles of law.

Grover says that despite the law mandating urgent redressal of this kind of petitions, the manner in which the Supreme Court has dealt with the matters is problematic.

"The legal remedy of Habeas Corpus is designed for immediate hearing and urgent redress, in the absence of which the purpose is lost. The manner in which many Habeas Corpus petitions have been dealt with by Courts, I apprehend, will further embolden the State to deal with matters of life and liberty in a casual and cavalier manner."

Vrinda Grover

Sibal seconds the notion that the Court's handling of these matters was in fact inconsistent with the law.

"When the Court chooses to accept what the government says, it only tells you that decisions of the Court are inconsistent with the previous judgments of the Court and the Constitutional commitment for the protection of liberty."
Kapil Sibal

Merits of detention challenged, but not examined

Interestingly, the Supreme Court had not delved into the merits of any of these detentions. Detention orders, even when challenged, were not adjudicated on merits, with the Court often closing or adjourning the proceedings after the government’s assurance that the detenu would be released.

When Sara Abdullah Pilot questioned her brother Omar Abdullah’s prolonged detention under the PSA, the government sought time to reply. Before the Court could question the government on the merits of the detention, a decision was taken to revoke the PSA charges slapped on Abdullah, leading to his release and closing of the case.

Omar Abdullah was released from detention under PSA in March, 2020. The grounds for his prolonged detention were not needed to be examined by the Court as a result.
Omar Abdullah was released from detention under PSA in March, 2020. The grounds for his prolonged detention were not needed to be examined by the Court as a result.

Senior lawyer Mian Qayoom had moved the Apex Court challenging a contentious decision delivered by the Jammu & Kashmir High Court which upheld his detention based on FIRs lodged over ten years back. This judgment of the High Court remains untouched by the Supreme Court considering that the government assured the Court of Qayoom’s release from detention.

According to Dwivedi, if the detenues were given a proper hearing, they could have secured a release.

"...considering the kind of charges levied against most of them, they could have been released. Preventive detention is a matter where there are lots of technicalities involved. Even slight breach of those technicalities would result in the release of the person. There could have been situations when the detenu could have been released on these grounds."

Dinesh Dwivedi

The only case thus far where the larger issue was left open was the Habeas Corpus filed for Mohammad Yusuf Tarigami. However, the plea has been put on the shelf for the time being, in light of Tarigami’s subsequent release.

Conclusion

Even as the scrapping of the special status of Jammu & Kashmir continues to divide opinion in the rest of the country, one year later, citizens living in the region continue to face the effects of the various moves that have been taken unilaterally by the government.

There has been widespread criticism of the Supreme Court's handling of the cases arising out of the move to abrogate Article 370.

When it comes to Jammu & Kashmir, Sibal thinks that a different approach seems to be adopted by the Supreme Court.

"I think as far as Jammu and Kashmir is concerned, the Court, it seems to me, is hesitant to decide on merits… why that is so, I don’t know."
Kapil Sibal

Going by Supreme Court's own words, "it is time for all wounds to be healed."

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