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Erosion of Article 370 and the attitude of the Supreme Court

1. Introduction

On 5th August, 2019, Prime Minister Narendra Modi led Government, boldly scrapped seven decades of legal precedent by amending Article 370 that granted constitutional autonomy to the state of Jammu and Kashmir and stripped off the state into two “Union Territories” J&K UT and Ladakh UT subject to direct rule by national government in Delhi. The firm stand taken by Modi government earned him praise in India but fury in the erstwhile state of Jammu and Kashmir.

Taking such bold step was not possible without the suppression of liberties and rights guaranteed by the Constitution. To contain the protest and the justified rage and anger of common people against unilateral decision, a communication blackout was imposed in the region and political leaders were detained indiscriminately including three pro Indian former Chief Ministers of the state and whole region was put under strict curfew with heavy deployment of armed forces. Everything comes to stall all of sudden with unjustified restriction on civil and political liberties, painfully squeezed between 900,000 Indian troops.

The whole region was under the terrible siege and rule of power prevails over rule of law, at that time the only hope before everyone was the judiciary, which is regarded as guardian and protector of rights and a last resort to ask for help against unreasonable and unjust executive and legislative actions. However the judiciary has to act independently, impartially, in free and fair manner as mandated by the principles of natural justice and same principles are followed by judiciaries of civilized and democratic nations. Having strong faith in the judicial system of country the petitioners moved to Supreme Court to challenge the overnight abrogation of democratic rights and freedoms guaranteed to the people of the state of Jammu and Kashmir upon its accession and constitutional validity of abrogation of Article 370.

2. The judicial response to petitions challenging the constitutional amendments

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.

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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 judgment dated 2nd March, 2020, the Constitution Bench held that there was no compelling reason to allude the issue in regards to the difficult to the Presidential Orders gave under Article 370 to a larger Bench.

Since 2nd March 2020, there have been no indications of the posting of the pleas on Article 370. From the most recent seven day stretch of March, the SC went into a virtual lockdown, taking into account the COVID-19 pandemic, and only urgent matters were being taken up by means of video conferencing. Despite the fact that the SC has begun hearing Constitution Bench matters through video conferencing from the second week of July, there is no sign 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.

3. Habeas Corpus

In the plea filed by Iltija Mufti, the daughter of former J&K Chief Minister Mehbooba Mufti, Former CJI Ranjan Gogoi, in response to the request for permission to travel freely, asked, “Why do y ou 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.

In the plea of Umar Abdullah (Former CM of J&K) ,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 “.

Out of all pleas, the most amazing was the removal of previous Union Minister Prof. Saifuddin Soz’s habeas corpus petition. The Supreme Court, without determining the veracity of the submission of the Center that no detention order had been passed against Soz in the 1st place, discarded the habeas corpus supplication. A couple of hours post the hearing, a report by NDTV emerged, asserting that Soz was as yet under confinement, as opposed to the cases of the administration. In the video, Soz was seen yelling, “Let Supreme Court see how I am being detained “.

4. Juvinile Detentions

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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 cited multiple media reports including international media reports, the reports were accepted by J&K Juvenile Justice Committee but claimed that all 144 Juveniles were detained after following due process.

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.

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

5. Restrictions on Internet

The most astonishing chain of events unfolded in the case of Anur adha Bhasin v. Union of India (WP(C) 1031/2019) and its aftermath. In this landmark judgement access to internet was declared as fundamental right thus restored the lost faith in judiciary. However from time and again, even in the time of crises petitions were filed for the restoration of high speed internet (4G) to allow medical professional to do research to save precious lives and allow students to continue their education through virtual mode who have already lost 6 months of their academics during security lockdown of 2019. Everything that shifted from in person mode to virtual mode face obstacles including Virtual hearing and this was also admitted by Justice Gitta Mittal (C.J, J&K High Court) during case hearing. The government’s contention is that high speed internet is a threat to national security and has nexus with terrorism but that is completely illogical view as the terrorism related activities happened before internet was introduced in Kashmir and will happen till some concrete political solution of Kashmir. Punishing the whole population (8 million) against the presence of  less than 300 militants who are using social media as a mode of communication is something court should look seriously.

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As clear from the instances narrated above, the judiciary has remained a mute bystander with respect to the developments in J&K. The Court communicated that Kashmir has been a troubled zone and that “it is time for all wounds to be healed and look to the future within the domain of our country”. The genuine recuperating for wounds can happen just through equity and reconciliation, for which the Courts can assume a significant role by really adjudicating issues affecting the rights of citizens. Be that as it may, there has not been a single effective order passed by the Court during this period, examining the State’s activity on the touchstone of Constitution.

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Tajamal Islam
Student - School of Law, University of Kashmir