On 5th August, 2019 The President of India issued a Presidential order abrogating Article 370 of the Constitution which snatched away the special statue provided to the State of Jammu and Kashmir and made it an integral part of India. Later ,in October the State was bifurcated into two union territories namely Jammu and Kashmir And Ladakh. This invoked lots of controversies all over India with some people coming in support while others criticising this decision of government on various grounds. August 5 marked the primary anniversary of this abrogation and the issue in the given article revolves around the petitions pending in the supreme court regarding the abrogation. The petitions were on various grounds ranging from challenging abrogation of the Article in question (370) while others were habeas corpus writ petitions demanding release of leaders of opposition party from detention which included former CM of the J&K State. From one by one let us try to understand these petitions.
Also read: Article 370: What happened with Kashmir and why it matters …
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- Challenge to revocation of Article 370
Revocation of an Article means to official removal of the Article from the Statute book (in this case, the Constitution of India). More than 23 petitions have been filed at the Supreme Court challenging the constitutionality of the decision of the government to revoke Article 370. These petitions were heard in December 2019 and then in January 2020 by a five judges’ constitutional bench.
Some of the Intervenors in this case requested to refer this case to a larger bench because of earlier two judgements namely Prem Nath Kaul(1959) and Sampat Prakash (1968) of the Court are in conflict with regard to the scope and intent of Article 370 and whether the provisions are temporary or permanent.
Central Government and the Union Territory of J&K on the other hand contended that there was no conflict between the two judgements and opposed the reference made by petitioners.
Also read: Article 370 in The Constitution Of India 1949 – Indian Kanoon
FROM HABEAS CORPUS TO PLEA FOR 4G: A VIEW ON THE PETITION REGARDING THE STATE OF J&K
Legal Aspect– All such writ petitions to the Supreme Court that requires a scrutiny of the Constitution is tried by a Constitutional bench and the number of judges in a Constitutional bench is always in odd numbers so as to avoid any conflict or tie. Also, when a large number of cases are filed regarding the same issue (Cause of Action), Court use to club all the cases and consider them one (Representative suit) while giving verdict. Here also all the petitions have been clubbed together.
The SC heard the parties on this limited ground and rejected the plea for referring the matter to a larger bench on March 2nd.The case has not been heard afterwards.
Petitions against lockdown
The abrogation of article 370 followed total shutdown in Kashmir to prevent mass protests. Telephone lines, mobile connection and internet services were stopped and restrictions were imposed in the valley. Several petitions were filed before the Supreme Court regarding such restrictions being violative of article 19(1) which gives the fundamental right to speech and expression and the right to move freely. The petitioners in this case included editor of Kashmir Times newspaper, Anuradha Bhasin, and Congress leader Ghulam Nabi Azad.
Also read: What is Article 370, Article 370 News, Article 370 Provisions …
Legal Aspect– Article 19 of Indian Constitution- Protection of certain rights regarding freedom of speech etc(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practise any profession, or to carry on any occupation, trade or business
A year on, Article 370 and Kashmir mythmaking – The Hindu
A three judges top court bench comprising Justice NV Ramana, R Subhash Reddy and BR Gavai heard the case and ruled on January 10th that restrictive orders by the government should be reviewed. It was held that freedom of speech and expression and freedom to carry on trade or profession through the internet was a fundamental right under Article 19 of the Constitution and any order suspending internet services can be only for a temporary duration and not for an indefinite period. Such orders should indicate the reasons for the necessity of such a shutdown and they should be put in the public domain, the court ruled.
While the court did say that prohibitions on free speech and movement will be violative of fundamental rights, it did not strike down such prohibitions. Instead, it asked the government itself to review such restrictions. The practical impact of this judgment was little although the government subsequently eased many restrictions in the Valley.
Plea for restoration of 4G services
In March, the J&K administration restricted the internet speech in Mobile data to 2G. subsequently a petition was filed by an NGO, Foundation of Media Professionals in April challenging this order of the Government citing that the internet services should be restored in J&K taking in account the pandemic.
The supreme court did not give any directions to restore 4G internet services in the state instead they constituted a special committee to take a call on the issue and examine the necessity to allow faster internet services in certain areas of the Union Territory.
Again, a Contempt of Court petition was filed by the petitioner in June citing that no action has been taken yet to comply with the SC’s judgement. To which the Centre replied that the committee was constituted to review restrictions in J&K and it has decided against offering any relaxation for the time being.
The right to use internet also comes under the Article 19 of the Constitution. The case is due to come up for hearing on August 7th.
Also read: FALQs: Article 370 and the Removal of Jammu and Kashmir’s …
Habeas Corpus petitions
Of all the petitions filed before the court in regard to the abrogation of the Article 370, the habeas Corpus petition was the most heard in the news. The writ of Habeas Corpus is issued under Article 32(for Supreme Court) and 226(for High Court) of the Constitution. The writ of Habeas Corpus literally means to present the body. This writ requires to present a person arrested before a Judge or Court, to secure a person’s release unless lawful grounds are shown for their detention. Various such petitions were filed before the Supreme Court and many of them involved the detention of the members of political parties. Few of them are-
Former Chief Minister of J&K State Omar Abdullah’s detention was challenged by his sister Sara Abdullah Pilot in February. A noticed was issued on February 14 to the J&K administration but the petition became pointless after his release on March 24th.
The former CM of J&K State was kept in detention under stringent Public Safety Act (PSA) was challenged in the apex court by her daughter IItija Mufti saying that it was based on vague and slanderous grounds that demonstrated personal and political bias against her. She further said that the February 5 order shifting her mother from preventive custody to detention under the PSA was based on a dossier prepared by the superintendent of police, Srinagar, replete with personal remarks and in bad taste. The court issued notice to the Centre on February 26 but the matter has not been heard after that.
Article 370 of the Constitution of India
Congress leader and former union minister Saifuddin Soz’s detention was challenge before the Supreme Court on June 1 by his wife Mumtaz unnisa Soz. He has been under detention since August 5, 2019.When the petition came up for hearing on June 8, the SC sought the response of the Centre and J&K. The Centre filed an affidavit in July stating that Soz was never under detention and the petition was frivolous. It was stated that Soz has been given security personnel for his protection and he is free to go anywhere. The SC disposed of the case on July 29 after recording the centre’s stance. There was a twist in the tale as Soz was captured on video by TV channels stating that he was under house arrest. Interestingly, the order passed by the Supreme Court on July 29 disposing of the petition is yet to be uploaded on the website of the court.
Mian Abdul Qayoom:
President of the J&K high court bar association, Mian Abdul Qayoom was detained on August 5, 2019 under the PSA. He was subsequently shifted to Agra the same month and then to Tihar jail in January 2020.Qayoom’s plea challenging his detention was turned down by the J&K high court on May 29. The high court held that Qayoom’s ideology was like a live volcano. Qayoom then appealed to the top court. A three-judge bench ordered Qayoom’s release on July 29 after the central government agreed to it.
Legal Aspect: The Jammu & Kashmir PSA Act under which all the above detentions were made is a preventive detention law under which a person is taken into custody to prevent him or her from acting in any manner that is prejudicial to the security of the State and maintenance of the public order. It is very similar to National Security Act that is used by the
state governments for the preventive detention.
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This post is written by Rashmi Kumari.
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