Kashmir and Article 370: A look at the cases in Supreme Court and where do they stand
August 5 marks the first anniversary of the scrapping of Article 370 of the Constitution, which conferred special status on Jammu and Kashmir. The move led to numerous petitions in the Supreme Court. Here is a look at where those cases stand.
Challenge to abrogation of Article 370
A total of 23 petitions challenging the central government’s decision to abrogate Article 370 of the Constitution, thereby revoking Kashmir’s special status, are pending in the Supreme Court.
These petitions were heard by a Constitution bench led by justice NV Ramana last December and in January.
Some parties to the case requested the case should be referred to a larger bench of seven or more judges. This, they argued, was because two earlier Supreme Court judgments – Prem Nath Kaul (1959) and Sampat Prakash (1968) – are at loggerheads on the scope and intent of Article 370, and whether the provision was intended to be temporary, transitory or permanent. Since both judgments were delivered by benches of five judges, the parties asked the court to refer the matter to a larger bench.
The Central government and the union territory of Jammu and Kashmir opposed the reference and said there was no conflict between the two judgments. They maintained Article 370 was temporary.
The Constitution bench heard the parties with regard to the reference and delivered its verdict on this limited aspect on March 2. It declined to refer the matter to a larger bench, saying there was no conflict between the judgments in Prem Nath Kaul and Sampat Prakash.
The case has not been heard after that.
Petitions against lockdown
The scrapping of Article 370 was accompanied by a total shutdown of Kashmir to stifle protests which were anticipated. Telephone lines, mobile communication and internet services were stopped and restrictions were imposed on media and transport.
A slew of petitions were filed in the Supreme Court challenging these restrictions, which petitioners argued were violated the fundamental right to speech and expression and the right to move freely. The petitioners included Kashmir Times editor Anuradha Bhasin and Congress leader Ghulam Nabi Azad.
A three-judge bench of the Supreme Court heard the case and ruled on January 10 that restrictive orders suspending internet, telecommunications and movement should be reviewed by the government.
It said freedom of speech and expression and the freedom to carry on trade or profession through the internet is a fundamental right under Article 19 of the Constitution, and any order suspending internet can only be temporary and not for an indefinite period. Such orders should indicate reasons for such a shutdown, which should be published in the public domain, the court ruled.
While the court did say bars on free speech and movement would violate fundamental rights, it didn’t strike down such prohibitions. Instead, it asked the government to review such restrictions. The practical impact of the judgment was scant, though the government subsequently eased many restrictions.
Plea for restoring 4G services
A petition was filed in the Supreme Court in April, challenging an order by the Jammu and Kashmir administration restricting mobile internet speeds to 2G. The petition by the NGO, Foundation for Media Professionals, said 4G services be restored in view of the Covid-19 crisis.
It contended restrictions on mobile internet speed was affecting the people’s right to know the latest information about Covid-19 and medical health services since doctors weren’t able to access latest studies, protocols, manuals and advisories on the Coronavirus.
It also pointed out that slow internet speeds rendered telemedicine or online video consultations impossible.
The Supreme Court, in a judgment on May 11, refrained from passing directions to restore 4G services and instead constituted a special committee of senior officers to take a call on the issue and to examine the need to allow faster internet speed in certain areas of the union territory.
Subsequently, a contempt of court petition was filed by the petitioner in June, pointing out that no action had been taken to comply with the top court’s judgment.
The central government told the Supreme Court a special committee was set up in line with the Supreme Court’s May 11 order to review restrictions on mobile internet speeds and it decided against any relaxations for the time being.
When the matter came up for hearing on July 28, the petitioner told the court that Lieutenant Governor GC Murmu had told media that 4G should be restored, a stance contrary to the Central government’s.
The Central government told the Supreme Court it will verify media reports and respond to the petitioner’s claim. The case will come up for hearing on August 7.
Habeas corpus petitions
Several habeas corpus petitions were filed in the Supreme Court against detention of individuals. Four such petitions are:
Former chief minister Omar Abdullah’s detention was challenged in February in the Supreme Court by his sister Sara Abdullah Pilot.
The top court on February 14 issued notice to the Jammu and Kashmir administration but the petition became infructuous (pointless) after Abdullah was released on March 24.
Iltija Mufti, the daughter of former chief minister and Peoples Democratic Party leader Mehbooba Mufti, challenged the latter’s detention under the Public Safety Act (PSA), saying it was based on vague grounds that demonstrated personal and political bias.
Mufti was detained on August 5, 2019. She was initially detained under Section 107 of the Code of Criminal Procedure, which empowers an executive magistrate to order a person to execute bonds “for keeping the peace”. She was in custody for six months and her detention was set to expire in February, when a new detention order was issued under PSA, which allows the administration to detain a person without trial for up to two years.
In her petition, Iltija said the February 5 order shifting her mother from preventive custody to detention under PSA was based on a dossier prepared by the superintendent of police, Srinagar, that was replete with personal remarks and in bad taste.
The court issued notice to the Central government on February 26 but the matter hasn’t been heard after that. The central government, on July 31, extended Mufti’s detention by three months.
This would be the most noteworthy of all habeas corpus pleas from Jammu and Kashmir. Congress leader and former Union minister Soz’s detention was challenged in the Supreme Court on June 1 by his wife Mumtazunnisa Soz.
Soz, an octogenarian, is a former member of Parliament who served as Union minister for environment and forests during 1997-99, and as Union minister for water resources during 2006-09. He was detained on August 5, 2019.
When the petition came up for hearing on June 8, the Supreme Court sought responses from the Central government and Jammu and Kashmir. The Centre said in an affidavit in July that Soz was never under detention and the petition was misconceived and frivolous. It said Soz had been given security for his protection and was free to go anywhere.
The Supreme Court disposed of the case on July 29 after recording the Centre’s stance.
However, there was a twist to the tale as Soz was captured on video stating he is under house arrest. The video showed security personnel barring Soz from coming out of his house or not permitting visitors inside the compound.
The order passed by the Supreme Court on July 29 disposing of the petition is yet to be uploaded on the court’s website.
Mian Abdul Qayoom
Jammu and Kashmir High Court Bar Association president Qayoom secured a reasonably favourable order from the top court.
Qayoom was detained on August 5 last year under PSA. He was shifted to Agra the same month and then to Tihar jail in Delhi in January.
His plea challenging his detention was turned down by the Jammu and Kashmir high court on May 29. The high court said Qayoom’s ideology, which the government termed “separatist”, was like a live volcano and remained unaffected by passage of time. Qayoom then appealed to the top court.
A three-judge bench ordered Qayoom’s release on July 29 after the Central government agreed, taking into account his age and deteriorating health.
“We are sure that the petitioner (Qayoom) will also adopt a more constructive approach to the future and the Government will consider how to bring complete normalcy at the earliest,” the court said.