5-judge SC bench to hear J&K challenge
A five-judge Constitution bench will hear in October a bunch of petitions challenging the scrapping of Article 370, which guaranteed special status to Jammu & Kashmir, the Supreme Court said on Wednesday and, brushing aside objections by the Centre, issued a notice to the government to respond to the pleas.
It was one of a string of tough rulings delivered by a bench headed by Chief Justice of India (CJI) Ranjan Gogoi and comprising SA Bobde and SA Nazeer, who also allowed Communist Party of India (Marxist), or CPI (M), general secretary Sitaram Yechury and a Kashmiri law student to travel to the Valley, and also issued notice to the government on a petition seeking the removal of restrictions on media in the state.
Solicitor general of India Tushar Mehta requested the top court more than once not to issue a formal notice to the government on the petitions against nullification of Article 370. He said a notice would have “cross-border repercussions ”, and is liable to be misused. Mehta alluded to the possibility of politicians using the court notice to target the government.
“Anything that happens on this issue is projected by other political leaders,” said Mehta, the second highest legal officer, next only to the attorney general.
“We know what to do, we have passed the order, we are not going to change it,” the bench said.
On August 5 and 6, Parliament approved provisions nullifying Article 370, which offered special status for J&K, and Article 35A, under which outsiders were barred from holding government jobs or owning property in Kashmir. The state was divided into two Union territories — J&K and Ladakh — in a move that would take force on October 31.
Discontent has simmered in Jammu & Kashmir since the early hours of August 5, when phone and internet communications were suspended and restrictions clamped on pubic movement. The government also detained hundreds of political activists, including former chief ministers Omar Abdullah and Mehbooba Mufti.
In the ensuing days and weeks, a bunch of petitions challenged the moves by the Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) government.
The National Conference (NC) filed a petition on August 10, contending that the changes brought in the status of the state had taken away the rights of its citizens without their mandate. Arguing that the legislation approved by Parliament and the orders issued by the president subsequently were “unconstitutional”, the petition asked for those to be declared “void and inoperative”.
The petition was filed by NC’s Lok Sabha MPs Mohammad Akbar Lone and Hasnain Masoodi, a retired judge of the Jammu & Kashmir high court who, in 2015, ruled that Article 370 was a permanent feature of the Constitution.
Several other petitions challenged the end of Article 370. One of them was filed by a group of retired military officers and bureaucrats, including former home secretary GK Pillai. A Jamia Millia Islamia student from Kashmir wanted to be allowed to go home to Anantnag to check on his family, a J&K-based journalist complained about media restrictions, and Yechury filed a petition challenging the detention of Kashmiri politician and party colleague Mohammed Yousuf Tarigami.
Among other petitioners is Tehseen Poonawalla, an activist, who has cited the lockdown in the region that he said amounted to suspension of Article 19 (freedom of speech) and 21 (personal liberty) of the Constitution.
Another petitioner is NC leader Mohammad Akbar Lone, who said the right to autonomous self-government within a federal framework is an essential fundamental right. These rights have been taken away without the “procedure established by law” in a manner that violates every canon of constitutional morality, he has claimed.
The Supreme Court allowed Yechury and the Kashmiri law student, Aleem Syed Mohammed, to travel to the Valley, under police protection and asked the two to submit a report on their return.
“Why do you have any difficulty if a citizen of this country wants to go there and meet his friend and party colleague?” the bench asked solicitor general when he opposed the visit. “If a citizen wants to go to a part of his country, he is entitled to go.”
Mehta said Yechury’s visit may affect the prevailing situation in Jammu and Kashmir and the issue might become political. “This may endanger the situation. The situation is becoming normal there,” Mehta told the bench, adding that the Left leader’s proposed visit to the state “appears to be political”.
The apex court made it clear that Yechury was allowed to visit Jammu & Kashmir to meet his party colleague only and if he was found to be “indulging in any other act of omission and commission, it will be construed to be a violation of this court order”.
Yechury’s counsel told the top court that he was willing to give an undertaking that he would not engage in any activity other than meeting Tarigami and enquiring about his well-being. Senior advocate Raju Ramachandran, appearing for Yechury, said Tarigami was a four-time MLA and he had last spoken to Yechury over the phone on August 4, when he indicated that his health condition was “poor”.
When the bench said it would allow Yechury to go to Kashmir to meet Tarigami, Ramachandran said, “I [Yechury] had gone there earlier also. They [authorities] did not allow me to go out of the airport.” To this, the bench said, “You go there. We will pass the order. You go there and meet your friend, nothing else.”
The apex court issued notice to the Centre and the J&K administration to reply to the pleas seeking removal of several restrictions imposed in the state, including the communications blockade, that are hampering the functioning of the media, on two petitions, filed by Poonawalla, and Anuradha Bhasin, executive editor of Kashmir Times.
Advocate Vrinda Grover, appearing for Bhasin, submitted that “we are in the 24th day of information blackout due to restrictions imposed there”. Bhasin sought directions for the restoration of all modes of communication, including mobile Internet and landline services throughout the state to provide an enabling environment for the media to practise its profession.
Poonawalla’s counsel had earlier said that he was not expressing any opinion on Article 370 but had sought withdrawal of “curfew/restrictions” and other alleged regressive measures including blocking of phone lines, Internet and news channels. Poonawalla also sought a direction from the apex court for the release of leaders such as former chief ministers Abdullah and Mufti.
CPI(M) leader Yechury made two attempts to visit Jammu and Kashmir this month — once with Communist Party of India (CPI) general secretary D Raja, and another with a delegation of opposition party members. Both times, he had to return from the Srinagar airport on the orders of the Jammu & Kashmir administration that cited security issues as the reason.
CPI(M) had filed a writ petition under Article 32 of the Constitution, which says a person has the right to move the Supreme Court (and high courts also) for getting his fundamental rights protected.