Senior Advocate Dushyant Dave
Senior Advocate Dushyant Dave

Kashmir: Will Centre impose Section 144 across the country so that no murders take place? Dushyant Dave

Bar & Bench

The hearing in Supreme Court today in the cases concerning restrictions in Kashmir valley was privy to fervent submissions by Senior Advocates Huzefa Ahmadi and Dushyant Dave.

Ahmadi appearing for Anuradha Bhasin relied extensively on the dissenting judgment of Justice HR Khanna in the ADM Jabalpur case to assail curtailing of personal liberty.

He argued that the dissenting judgment of Justice Khanna is the law today after the Supreme Court in Right to Privacy judgment expressly overruled the majority judgment in ADM Jabalpur.

“Article 21 cannot be considered the sole repository of life and liberty. Even in the absence of Article 21 nobody can be deprived of life and personal liberty without the authority of law”, submitted Ahmadi relying on Justice Khanna.

He also argued that the submissions of the Central government, in this case, was worse than in ADM Jabalpur in that there is no proclamation of emergency in operation currently.

“In ADM Jabalpur, they were at least armed with Emergency. There they said detenues cannot move the Court at all. Here they are saying we can move the court but they (Govt) need not produce detentions orders or reasons on the ground of National Security. Essentially their argument is based on Executive supremacy” said Ahmadi.

On Section 144 of the Code of Criminal Procedure, Ahmadi argued that it can be imposed only after an opinion is formed based on material facts and not based on apprehension.

Senior Advocate Dushyant Dave was next to argue. Representing Foundation for Media Professionals, he began his arguments by stating that those who support petitioners should not be viewed through the prism of being against the interest and integrity of the nation.

Dave said that he t has been 106 days since restrictions have been imposed in Kashmir but this did not go down well with the Bench which assumed that he was imputing delay on the part of the Supreme Court in hearing the matter.

“Are you criticising the Supreme Court for the delay”, asks Justice NV Ramana.

Dave clarified that he was pointing fingers at the Central government and not the court.

“Not at all. I am criticising the government for not lifting the restrictions”, Dave replied.

Justice Ramana pointed to earlier orders of the Supreme Court to show there has been no delay on part of the court. Dave reiterated that his grievance was not against Court but against the government.

Dave then proceeded to make his arguments. One of his main contentions was that national security and terrorism cannot be a ground to curtain the rights of 7 million people.

“The rights of 7 million people are as important as anybody. They are as Indian as anybody. More so after the scrapping of Article 370.

The govt cannot justify restrictions on the basis that it is because Kashmir has been gripped by terrorism all these years.”

Dave then went on to cite the example of Hong Kong.

“Look at Hong Kong. Protests have been going on for weeks but even then a Communist State has not imposed blanket restrictions like us. Only one restriction was imposed. Those protesters should not wear mask and that was struck down yesterday by their High Court.”

Dave also placed extensive reliance on Constituent Assembly Debates particularly with regard to Article 32 and the jurisdiction of Supreme Court and Dr. BR Ambedkar’s take on the same.

“He (Dr. Ambedkar) had faith in this institution. That whatever happens in Parliament, this Court will step in and protect individual liberty.”

On the orders imposing restrictions, Dave said that they are sweeping in nature affecting everybody irrespective of whether they have a history of criminal record or not.

“They have brought these draconian sweeping orders whereby everybody is affected irrespective of whether they have a history of criminal record or not. Your Lordships have held that it cannot be done. Individual liberty cannot be subsumed just to have social control.”

Dave also launched a strong attack on the counter-affidavit submitted by the Central government in the matter calling it casual and cavalier.

“All that the Central govt have said in its affidavit is that the restrictions in Kashmir are in “national interest”. Such a cavalier and casual approach. All they wanted was to buy time from the court. They have not gone into the law.”

He also questioned the wisdom of the Centre in justifying the restrictions on the ground that “no single bullet has been fired in Kashmir”.

“What kind of argument is that? So tomorrow, will they impose 144 across the country. Then no murders will take place.”

At this point Solicitor General Tushar Mehta objected stating that he is yet to argue his case and that what Dave is stating is not what Mehta proposes to argue.

“These won’t be my arguments”, said Mehta.

“I am not saying these are your arguments. This is from Centre’s counter. I am sure it might not have been settled under the supervision of learned counsel like you Mr. Mehta”, Dave.

 “It is my counter-affidavit”, retorted Mehta.

Dave then argued that the Court should consider the restrictions as it existed in August 2019 while delivering its order and not the restrictions as it exist now.

This, he stated was because many of the restrictions have been relaxed now and the Court should issue directions on what cannot be done by the Executive so that there is no repeat of such an instance.

He concluded his arguments by requesting the Court to discourage the practice of sealed cover.

“People have a right to know in a democracy, RTI was a big revolution.”

Senior Advocate Meenakshi Arora and Solicitor General Tushar Mehta will advance their arguments on Thursday this week.

Read a full account of today’s hearing here.

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