Jammu & Kashmir High Court refuses to entertain plea challenging reorganization of State, lockdown
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Jammu & Kashmir High Court refuses to entertain plea challenging reorganization of State, lockdown

Shruti Mahajan

The Jammu & Kashmir High Court today refused to entertain a plea challenging the bifurcation of the erstwhile State of Jammu and Kashmir into two Union Territories as well as the imposition of curfew and blockade on media and communications in the State.

While disposing of the petition filed by Professor Abdul Gani Bhat, a Single-Judge Bench of Justice Ali Mohammad Magrey noted that the Supreme Court was already seized of the matter and all of the prayers prayed for in the petition. On account of this, the High Court gave the petitioner the liberty to move the Supreme Court by filing a fresh petition or intervening in pending petitions in order to assist the Court “in the interest of justice.”

Justice Ali Mohammad Magrey
Justice Ali Mohammad Magrey

The petitioner, a resident of Kashmir, had not only challenged the reorganization of the State of Jammu and Kashmir but also prayed that all the orders passed thereafter on subjects other than defence, foreign relations, and communications be quashed as illegal. The petitioner had also prayed that the restrictions in Kashmir that effectively prevent the free circulation of the media and the press be lifted along with the lifting of the curfew.

He had also prayed that those persons lodged in far off prisons be brought back to Kashmir and their cases be tried speedily. In case it was found that such a person was confined and detained wrongfully, then it was prayed that compensation be awarded to him.

The petitioner had also sought directions to the Government of India to give reasons for detention/ house arrest of political leaders.

The Government of India, represented by ASGI Tahir Majid Shamsi, told the Court that the prayers sought in the petition have already been made by way of a number of petitions before the Supreme Court of India.

While the petitions challenging the Presidential Order of August 5 and the subsequent and consequential bifurcation of the State will be heard by a Constitution Bench in the first week of October, petitions pertaining to the media restrictions and lockdown will be heard by the Court, for final disposal, on September 16, Shamsi told the Court.

The High Court, therefore, refused to entertain the petition noting that any order passed by the High Court after the Supreme Court decides the issue would be inconsequential. The Court also recorded that the petitioner may have his own perception of facts and law and may provide valuable assistance to the Supreme Court when the matter is taken up. Therefore, “in the interest of justice”, the Court dismissed the petition while saying,

“[I]t would be appropriate to dismiss this petition, leaving the petitioner free to approach the Supreme Court to file a writ petition there or to seek intervention there in the pending writ petitions. May be, he has something valuable, of some assistance to law, based on his perception of law and of the historical backdrop of the matter, to put across, which the appearing counsel in the matters pending before the Supreme Court might inadvertently skip or miss out.”

Before parting, however, the Court objected to a submission made in the petition which said that the High Court was shut on August 5 or that no one was available. Refuting the same, the Court said that the petitioner ought to have verified the facts before making such statements.

“It would suffice to say that it would have been appropriate and reasonable for the petitioner that, before making such a statement in the petition, he ought to have checked the Regular and Supplementary Cause Lists of cases fixed for the day in question before the different Benches of the Court, and apply for and obtain, in accordance with the Rules governing the subject, the copies of the orders passed by such Benches of the Court, including this Bench, in such listed cases from the Registry of the Court, and to go through the same to know whether the Court had functioned on the day question or not, and whether the employees of the Court who had dealt with these files etc. on that day had attended their duties or not.”

[Read Judgment]

Abdul-Gani-Bhat-vs-UOI-JK-High-Court.pdf
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