O n August 28, when the Supreme Court heard a slew of petitions challenging the constitutionality of the Centre’s August 5 decision to abrogate Jammu and Kashmir’s special status, and its consequent steps, the Centre’s two top law officers, Attorney General of India K.K. Venugopal and Solicitor General Tushar Mehta, made a strange request. Both asked the bench of three judges hearing the case—Chief Justice of India Ranjan Gogoi, Justice S.A. Bobde and Justice Abdul Nazeer—not to issue notice to the Central government, an essential legal prerequisite to kick-start the process of hearing the disputing parties to the case: the petitioners and the respondents, which include the Centre.
They said that the issuance of a formal notice to the Centre to respond to the petitioners would lead to cross-border repercussions and that Pakistan would use it against India at the United Nations. They suggested that as the government’s law officers were present in court, the formality of issue of notice could be dispensed with.
The bench ignored such “concerns”. The Centre’s paranoia over a possible misreading of the court’s issuance of notice to the respondents as its indictment by those unfamiliar with legal processes cannot be a ground to dispense with the practice of issuing notice. Besides, there was no precedent to rely on for dispensing with such a procedural step and it would raise substantial issues of constitutional importance.
It was obvious that the federal government dreaded the prospect of adverse publicity from media reports and the possible implication that by issuing notice the apex court entertained doubts about the validity of the abrogation of special status for the State and downgrading it into two Union Territories.
By promptly referring the petitions for hearing by a five-judge Constitution Bench from the first week of October, the Supreme Court put to rest speculation that it might even delay listing these petitions under pressure from the Centre.
But the court could not easily ward off comparisons drawn by some observers between this case and A.D.M. Jabalpur vs Shivkant Shukla , which brought much disrepute to the court.
In that case decided during the Emergency, declared by the then Prime Minister Indira Gandhi, the Supreme Court, by a majority of 4:1, upheld the stand of the Central government that the suspension of fundamental rights of citizens during an emergency was constitutional. The lone dissenting judge in the case was Justice H.R. Khanna.
While the entire Indian media suffered the rigours of censorship during the Emergency and, therefore, could not criticise the Supreme Court’s flawed abdication of its responsibilities then, The New York Times , in an editorial titled “Fading Hope in India”, dated April 30, 1976, observed: “If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna of the Supreme Court. It was Mr Justice Khanna who spoke out fearlessly and eloquently for freedom this week dissenting from the court’s decision upholding the right of Prime Minister Indira Gandhi’s government to imprison political opponents at will and without court hearings.”
Justice Khanna, in his dissent, held that the power of the courts to issue a writ of habeas corpus is regarded as one of the most important characteristics of democratic states under the rule of law. He added that the principle that no one should be deprived of his life and liberty without the authority of law is rooted in the consideration that they were precious possessions, tracing their origins to days prior to the birth of the Constitution.
On August 28, 2019, the same Supreme Court whose judges had only two years back formally set aside the majority judgment in the A.D.M. Jabalpur case while declaring the right to privacy as a fundamental right responded differently to habeas corpus petitions concerning detentions in Kashmir.
Instead of asking the government whether the detentions were legal, the court, as if acting magnanimously, permitted the two petitioners to travel to Jammu and Kashmir with police protection.
One of the petitioners is Sitaram Yechury, general secretary of the Communist Party of India (Marxist), who was aggrieved about the detention of his ailing party leader in Jammu and Kashmir, Mohammed Yousuf Tarigami. Tarigami is also an erstwhile elected member of the Jammu and Kashmir Legislative Assembly. Yechury complained that in spite of his best efforts he was not able to enquire about the welfare of Tarigami and his attempt to meet him personally by going to the State did not succeed as he was refused entry by the authorities. Yechury had also filed an application seeking orders from the court to bring Tarigami to the All India Institute of Medical Sciences (AIIMS), New Delhi, for better treatment.
The court observed in its order: “We make it clear that if the petitioner [Yechury] is found to be indulging in any other act, omission or commission save and except what has been indicated above, that is, to meet his friend and colleague party member and to enquire about his welfare and health condition, it will be construed to be a violation of this court’s order.” Only after Yechury gave an undertaking that he would go to Jammu and Kashmir only for the purpose specified in the order did the court direct the Senior Superintendent of Police, Security in Jammu and Kashmir, to facilitate Yechury’s access to Tarigami. The court also asked Yechury to file a report on his visit, supported by an affidavit in the court, once he returned to New Delhi. On September 5, the court directed the State to shift Tarigami to AIIMS.
The second petitioner is a law graduate in Delhi, Mohammad Aleem Syed, who was worried that his parents in Anantnag, Kashmir, might have been detained illegally. The court allowed him to travel to Anantnag, meet his parents and, after ensuring their welfare, to report back to the court on the next date fixed. The court directed Syed to file an affidavit on the “events that have transpired pursuant to the order of this court” immediately on return from the State. The court also directed the State police to facilitate his travel and access and provide him and his parents adequate protection.
The court appeared not to be anxious at all in determining whether these detentions in Kashmir were legal and, if not, in directing the expeditious release of such detenues.
The only detenue to challenge his detention in Kashmir is Shah Faesal, a former Indian Administrative Service officer, who filed his habeas corpus petition before the Delhi High Court through a friend. Faesal, who has the distinction of being the first Kashmiri to secure the first rank in the Civil Services examinations (in 2009), resigned in January this year from the civil service to launch a political party, the Jammu and Kashmir People’s Movement. He was detained at the Delhi airport when he was on his way to Boston in the United States via Istanbul and Frankfurt to pursue higher studies. Faesal had to knock on the doors of the Delhi High Court, as the Jammu and Kashmir High Court has almost become non-functional owing to post August 5 restrictions. The Delhi High Court, too, lent no urgency to the matter.
The right of habeas corpus was formally suspended during the Emergency. However, the Indian courts today appear to deny that right to citizens without its formal suspension. The court appears to be telling the petitioners in habeas corpus cases to not worry about the legality of a detention but seek to ensure the safety and well-being of the detenues.
For media freedom
The media in Kashmir today is as restricted as the media in the entire country was during the Emergency. The editor of Kashmir Times , Anuradha Bhasin, filed a petition in the Supreme Court seeking lifting of restrictions on communication and movement, imposed in Jammu and Kashmir, following the Centre’s decision to abrogate Article 370 (interview on page 21).
In her additional affidavit filed in the court, Anuradha Bhasin said that movement of journalists, including photo- and video journalists in Srinagar, continues to be restricted by security forces, who had no compunction in deleting footage they did not approve of. She alleged that the security forces often did not allow journalists holding a pass to move from one area to the other. “Journalists, and in particular Kashmiri journalists, despite being armed with a Press Card and movement pass, have been hindered from news gathering and news reporting, and their movement curtailed,” she wrote. According to her, journalists have been denied entry to Srinagar downtown and many of them have faced hostility and aggression from the security forces if they sought access. Journalists have no means of bilateral communication with their editors/bureau offices, and this significantly impacts the ability to verify and authenticate information, she added. Besides, there is constant monitoring of news reports being sent to bureau offices through the official media centre, making it impossible for journalists to work without fear and favour, she claimed.
No doubt, freedom of expression, which includes the freedom of the media, is not absolute and can be subjected to “reasonable restrictions” under the Constitution. But the Supreme Court made it clear in 1985 in Indian Express Newspapers vs Union of India that there cannot be any interference with the freedom of the press in the name of public interest. “The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Freedom of the press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of the press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate,” the court had held in that case.
The Press Council of India (PCI) first chose to oppose the plea filed by Anuradha Bhasin. When the Editors Guild of India and the media expressed grave concerns that the PCI, instead of speaking up for press freedom, was perversely arguing for a media clampdown in the name of national interest, the resulting uproar forced it to tweak its submission in the Supreme Court in defence of press freedom.
It is to be seen whether the court will hear the petitions challenging the illegal detentions in Jammu and Kashmir, and the unreasonable restrictions on the media in the State, in the light of its earlier jurisprudence and render justice. Any departure from its own precedents would make the court appear weak and submissive to the majoritarian agenda set by a government enjoying brute majority in Parliament. The status of statehood for Jammu and Kashmir is currently scheduled to last until October 31, after which it will start functioning as two Union Territories, Jammu and Kashmir and Ladakh. As the Supreme Court starts hearing as many as 13 petitions challenging the constitutionality of the abrogation of Article 370, observers wonder whether it could stop the government from going ahead if it is convinced that there are substantial grounds to believe that unconstitutional means were adopted to achieve partisan goals.