Solicitor General of India, Tushar Mehta
Solicitor General of India, Tushar Mehta

Kashmir: Rights of people not taken away but conferred for the first time in 70 years, SG Tushar Mehta

Bar & Bench

Before the Supreme Court today, Solicitor General Tushar Mehta made a vehement defence of the Centre’s move to abrogate Article 370 and to subsequently impose restrictions in Jammu & Kashmir.

The matter was heard by a Bench of Justices NV Ramana, R Subhash Reddy and Bhushan Gavai. Defending the move, Mehta said,

“It was in discharge of the Constitutional obligation of the government to protect the citizens. My argument is eventually going to be that the rights of the people have not been taken away but have been conferred for the first time in 70 years.”

He went on to cite figures relating to violent incidents and casualties in Jammu & Kashmir since 1990 to show the need for the abrogation of Article 370. He said that minimal restrictions were imposed to protect the life and property of the people, and that “everything is normal except internet”. He added that internet is available at tourist places in specific spots for a certain number of computers.

Justice Ramana questioned Mehta as to whether prohibitory orders were passed locally or for entire districts. In response, Mehta said,

“The argument that through one mandate entire region was put under restrictions is wrong. The decisions were based on the intelligence of the local officials and police station wise…

…There were no restrictions in Ladakh which was part of the State. Each area was assessed based on threat perception and past history based on the information of officials who are on the ground.”

Further, Mehta stated that students had started going to school; he said that 99.48% of the students appeared in the examination which was held as per schedule. Moreover, medicines and food were available for children.

The Solicitor General went on to list out the positives that have arisen from the abrogation of Article 370. Among others, he stated that rights of women marrying outside of Kashmir will be protected, 106 people-friendly laws which were not applicable earlier will be applicable now, and that the Right to Education would now be applicable in the region.

He also added that public transport has been mobilised for a week after August 5, when the abrogation took effect. All types of public transport are on the move on all routes, Mehta submitted.

The SG also refuted the claims of Kashmir Times Editor Anuradha Bhasin – one of the petitioners before the Supreme Court – that newspapers were not allowed to publish from Srinagar. He said,

“I’m alleging that she has chosen not to publish her newspaper from Srinagar. It is her volition to publish from Jammu perhaps to continue with her contention that everything is shut in the valley.”

Mehta also pointed out that the allegation of people being unable to access healthcare facilities in the valley has been made on the basis of a report on the website IndiaSpend. Placing reliance on a report by OpIndia, he argued that IndiaSpend was caught spreading misinformation.

Other information submitted by the SG includes:

  • 41,866 persons have lost their lives in 71,038 incidents of terrorist violence. This includes 14,038 civilians; 5,292 personnel of security forces and 22,536 terrorists. 
  • Orders under section 144 CrPC have been removed from all 195 [plus 7 in Ladakh = 202] Police Stations. Restrictions are imposed at some places at night. 
  • There has been a decrease in incidents of stone-pelting. Last year, 802 such incidents were reported. This year, there have been 544 such incidents, out of which only 190 incidents of stone-pelting has been reported after August 5.
  • All 93,247 landline phones are functioning. Out of total 59,76,359 mobile phones, 20,05,293 post-paid mobile phones [voice] are functioning in the valley.
  • 280 e-terminals, with internet facilities for the public at large, in all 10 districts of the valley have been arranged. This has benefited more than 2 lakh people so far.
  • All government offices and courts are fully functional. Since August 5, people have filed about 36,492 cases in the region and around 52,096 cases have been disposed of by courts, including the lower judiciary and the High Court.

Earlier in the hearing, Senior Advocate Meenakshi Arora made submissions for the petitioners. She contended that the order placing restrictions in Kashmir could not have the force of law if they were not published. The people of Kashmir had the right on August 5 to say if they were in favour or against the abrogation, she said.

“On August 4, people of the country are not aware that on August 5 there will be a move for the abrogation of Article 370 in the Parliament. The situation that the Court needs to see is the situation that was present on August 4 and there was nothing out of the ordinary on that day.”

Justice Gavai interjected,

“Your argument is that the Magistrate has the power to pass Section 144 (CrPC) orders and it appears that the Magistrates were under some dictate by the State Government?”

Arora replied in the affirmative. She went on to cite the example of the protests in Hong Kong, where the Court had held that the citizens had the right to cover their faces with masks and protect their identity. To this submission, Justice Ramana responded,

“The Supreme Court of India is far more superior in upholding the fundamental rights of the citizens.”

Justice Gavai intervened, 

“Is there a problem of cross border terrorism in Hong Kong?” Arora replied,

“The problem of cross border terrorism in Kashmir is present only in limited areas of the region but the entire population of the region is being put under restrictions.”

Justice Ramana summarised Arora’s argument, saying,

“You are saying it is like the entire population of Kashmir is being treated like terrorists.”

The hearing concluded after Attorney General for India KK Venugopal made arguments for the Centre.  Citing statistics of violence in the Kashmir region over a period of time, he said,

“The Government of India should be congratulated for the manner in which this (the abrogation of Article 370 and consequent restrictions) was handled without even a single bullet fired, without any life loss…

…This is why I urge for this to be viewed in a broader perspective and not the nitty-gritty of Section 144 orders etc.”

The matter will be heard next on Monday, November 25, at 12 PM.

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