By Amritananda Chakravorty
On Wednesday, August 28, 2019, the Supreme Court finally took up the slew of petitions challenging the validity of the Presidential Orders dated August 5 and August 6 respectively, after 24 days of complete lockdown of 7 million people in Kashmir, and directed that these petitions would be heard by a Constitution Bench of 5 Judges, from October, 2018 onwards, since it involved substantial questions of law. While issuing notice on these petitions, the Court rejected the objections of the Central Government, which contended that this was a ‘sensitive issue having cross-border repercussions’.
It is unfortunate that the Court took 24 days to even issue notice on these petitions, and then listed them after more than a month, especially when there are several reports suggesting that the lockdown was having severe humanitarian consequences, with essential medicines being out of stock, medical assistance lacking, complete shutdown of financial and banking facilities resulting in terrible cascading effect on Kashmiri students living in other parts of India. In short, Kashmir has become the world’s biggest ‘open prison’, with all fundamental rights being rendered naught while the highest Constitutional Court of the world’s largest democracy looks away, or rather endorses the Government’s illegal action in shutting down all communications in Kashmir by stating that ‘the Government is reviewing the situation’.
In all, seven petitions challenging the abrogation of Article 370 was heard on Wednesday, and referred before a Constitution Bench. Besides, on the petition filed by the editor of Kashmir Times, Anuradha Bhasin, challenging the restrictions imposed on the journalists to report from Kashmir, the Court issued notice and asked the Centre to give its response within a week. Further, the CPI(M) leader, Sitaram Yechury, filed a habeas petition for the production of his colleague, Mr. M.Y. Tarigami, politician from J&K who has been in detention since the beginning of the lockdown. The Court allowed Mr. Yechury to travel to Srinagar to visit his friend, but added a caveat that he should not indulge in any ‘other activity’, but only visit to enquire about his colleague’s welfare. In another habeas petition, a young law student was permitted to go to Kashmir to visit his parents in Anantnag and to report back to the Court on the next date.
What is unfolding in the Supreme Court in the context of Kashmir is a bizarre Kafkaesque nightmare, wherein the citizens of India have to approach the Supreme Court to visit their own family members or colleagues detained within the territory of this country, without any reason, and then ‘report’ back to the Court about their ‘interactions’ with their own family. This is no longer just a ‘Nanny State’, but now a ‘nanny court’ too. In fact, the Court’s actions have overturned the entire habeas jurisdiction on its head. The writ of habeas is often called the ‘great constitutional privilege’ or the ‘first security of civil liberty’, wherein it is meant as an effective and speedy remedy against illegal detention by the State or even by the private parties.
The law is well-settled that it is the Court’s duty to see that if there’s an allegation of illegal detention, then the detenue is produced before the Court by the State, and the Court then ascertains the individual’s choice and to determine whether he/she is in illegal detention or not. It is not the Court’s constitutional duty to either ask the State to visit detenue to ascertain his/her wish, or to send the detenue’s family/friend to meet him/her in detention to ask about ‘well-being’. The heart of the habeas jurisdiction lies in the production before the Court, and to determine whether or not the detenue is in illegal detention.
This entire jurisprudence comes to a grinding halt when the Courts, that too the Apex Court, pass directions in complete contrast to well-established principles and precedents. It is highly inappropriate for the Apex Court to state what Mr. Yechury, a veteran politician, can discuss with his longtime friend and colleague, and that too in such a highly politicized context. In a habeas case, the Court ought to have adjudicated whether Mr. Tarigami was in illegal detention or not, or what was the legal basis of his detention and if legal, whether it was reasonable or not.
The Court cannot abdicate its constitutional duty by making these stop gap arrangements and that too making these illogical demands that people should not discuss political issues with each other. How long can the Court pretend that the absolute lockdown of Kashmir is not a grotesque example of untrammelled exercise of brute power violating all democratic rights and constitutional freedoms? How long can it delay hearing the challenges to the communications blockade, besides the legality of the abrogation itself? It is like the Court is waiting for the Government to ease the restrictions on its own, without having to adjudicate whether the Government could have imposed such a blanket blockade having such wide human rights ramifications in the first place.
In recent times, the echo of the infamous case of ADM Jabalpur could be heard in many cases of the Supreme Court, which had resulted in gross miscarriage of justice, but none is louder than what is happening in the present case of Article 370, and the consequent communication blackout for almost 25 days. The Apex Court’s silence has never felt louder, and its rhetoric on freedom, rights, liberty and dissent more hollow.
May be it’s time to remind the Supreme Court the words of one of its own ‘great dissenters’, Justice H.R. Khanna in ADM Jabalpur, wherein he stated that “even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. This is the essential postulate and basic assumption of the rule of law and not of men in all civilized nations. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning. The principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has the effect of tampering with life and liberty must receive sustenance from and sanction of the laws of the land.”
ADM Jabalpur was expressly overruled after 41 years in the landmark right to privacy case in Justice (Retd.) K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, wherein Justice D.Y. Chandrachud held that “when histories of nations are written and critiqued, there are judicial decisions at the forefront of history. Yet others have to be consigned to the archives, reflecting what was, but should never have been.” This is the present state of affairs now, when the Supreme Court has allowed an entire State to be under lockdown for nearly one month, without any regard for the life and liberty of the millions of citizens, and any accountability for the State action. No amount of later progressive decision on Article 370, if at all, can compensate for the horrors perpetrated in the last few weeks under the direct watch of the highest Constitutional Court. The faith of every right thinking person in the administration of justice stands shaken today, but the Court is yet to be stirred, let alone exercising its constitutional ‘karma’. (IPA Service)