India: With Kashmiris Still Locked Up, Supreme Court In No Hurry To Hear Petitions | 6 Sept 2019

sacw.net - 6 September 2019

As we wait with bated breath for real news from Jammu and Kashmir since the total clampdown of 5 August, 2019, a large number of Writ Petitions finally got filed and the Supreme Court belatedly heard these on 28.08.2019 and some again on 05.09.2019. I read those of the petitions uploaded on the web and prepared this brief piece; and added a note on what one perceives to be the kingpin provision of the President’s Proclamation dated 19.12.2018! Hopefully it should help readers keep abreast of the legal battle ahead.

Part I

All the petitions filed in the Supreme Court were listed before a bench comprising of Chief Justice of India Ranjan Gogoi, Justices S.A. Bobde & S. Abdul Nazeer and are being detailed herein.

Petitions on Constitutional Challenge

In the first category are the cases which challenge the constitutionality, legality of one or all of the following:
i. Presidential Order C.O. 272 dated 05.08.2019
ii. Presidential Order C.O. 273 dated 06.08.2019
iii. The Jammu and Kashmir (Reorganisation) Act of 2019, which will come into effect on 31st October, 2019.

These are 8 in number and the details are given below:

Key: W.P. stands for Writ Petition

A W.P. (Civil) No. 1082/2019 titled Farooq Ahmad Dar Versus Union of India & Others has also been filed and was listed with the above petitions but details of the petition are not available.

Interim Relief/Stay Prayed For

In some of the petitions, applications have been filed for interim relief/stay of the operation of the two Presidential Orders and The Jammu and Kashmir (Reorganisation) Act of 2019.

President’s Rule Challenged

In Soayib Qureshi’s petition the constitutional validity of Presidential Order and notification dated 19.12.2018 imposing President’s Rule in Jammu & Kashmir has also been challenged. Dr. Shah Faesal’s petition specifically challenges Para (c)(ii) of the said President’s Proclamation.

In all the above petitions notice has been issued to the Government and they will be heard by a five judge constitution bench in the first week of October, 2019. Many more petitions are expected to be filed once the clampdown is lifted.

Petitions on Freedom of Press

In W.P. (Civil) No. 1031/2019 titled Anuradha Bhasin Versus Union of India & Others filed on 10.08.2019, the Executive Editor of Kashmir Times asked for immediate restoration of all modes of communication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide an enabling environment for the media to practice its profession. In this petition notice was issued on 28.08.2019 and it was listed again on 05.09.2019. Anuradha Bhasin filed an additional affidavit on 04.09.2019 which gives a chilling account of suppression of media in Kashmir and its effect on journalists. This petition will be listed on 16.09.2019 for final disposal.

The Hon’ble Supreme Court of India seems to be oblivious to the sufferings of Kashmiris even as the information blockade continues for over a month now; as it refrains from passing any effective orders in these petitions and keeps postponing the hearing!

Habeas Corpus to meet parents

In W.P. (Criminal) No. 225/2019 titled Mohammad Aleem Syed versus Union of India the petitioner was allowed to travel to Jammu & Kashmir; go to Anantnag; meet his parents and after ensuring their welfare, to report back on the next date fixed i.e. 05.09.2019. He was directed to file an affidavit of the events that transpire immediately on return from Jammu & Kashmir which he did in sealed envelopes. His petition will be now be taken up on 16.09.2019 with Bhasin’s petition. The Court has directed that the “Affidavit filed by the petitioner in three sealed covers be kept in the safe custody of the Secretary General of this Court, to be opened only under orders of the Court.â€

Habeas Corpus to meet friend and colleague

In W.P. (Criminal) No. 229/2019 titled Sitaram Yechury Versus Union of India and Another, the petitioner who is General Secretary of the Communist Party of India (Marxist) sought the production of Mr. Mohammad Yousuf Tarigami, a member of the Party and an erstwhile elected member of the Jammu & Kashmir Legislative Assembly. Sitaram Yechury had complained that in spite of best efforts, he has not been able to enquire about the welfare of his colleague and his attempt to meet him personally by going to the State of Jammu & Kashmir has also not succeeded, as he has been refused entry into the State. He has been permitted by the Supreme Court to travel to Jammu & Kashmir only for the purpose of meeting his friend and colleague party member and for no other purpose. The order specifically stated that if the petitioner is found to be indulging in any other act of omission or commission it will be construed to be a violation of the Court’s order. He was directed to file an affidavit in the court on his return which he did in a sealed envelope. On 05.09.2019 the court allowed the shifting of Mr. Mohammad Yousuf Tarigami to AIIMS Delhi for treatment. The case will be listed again in a week.

Habeas Corpus to meet mother

On a petition filed on 04.09.2019 the Supreme Court allowed Iltija, daughter to former Jammu and Kashmir Chief Minister Mehbooba Mufti, to travel to Srinagar to meet her mother despite objections from the Government. However moving around in other parts of Srinagar is subject to requisite permission from the district authorities as and when necessary!
[Writ Petition (Criminal) No. 250/2019 titled Iltija Versus Union of India and Another]

Release of Political Leaders

In one of the first petitions Congress ideologue, Tehseen Poonawalla had asked for release of political leaders; withdrawal of curfew; restoration of all modes of communication lines. In this petition also notice was issued on 28.08.2019. It was disposed of on 05.09.2019 without giving any relief with the liberty to intervene in Bhasin’s petition which raises similar issues.

[W.P. (Civil) No. 1017/2019 titled Tehseen Poonawalla Versus Union of India and Another]

Questionable Petitions

The first petition to be filed on the issue was by Manohar Lal Sharma on 6th August itself. When this petition came up for hearing (I was present in court at that time), the Chief Justice reprimanded the petitioner and told him why he filed such a badly drafted petition in such a serious matter. He however declined to dismiss the petition even on technical grounds saying it will affect other pending petitions. The downside is that whatever judgement is passed in these writ petitions the case title will be Manohar Lal Sharma Versus Union of India & Another! Manohar Lal Sharma keeps filing lots of PILs in the Supreme Court!!

There was one more petition filed by Vineet Dhanda. Not much information is available on this petition except as per media reports it is a “pro-government†petition. However, his petition was dismissed on 05.09.2019.

Part II

A lot has been written on the Presidential Order C.O. 272; Presidential Order C.O. 273 and The Jammu and Kashmir (Reorganisation) Act of 2019. But the precursor of all this was the Proclamation by the President of India vide G.S.R. 1223(E) dated 19th December, 2018 imposing President’s rule in Jammu & Kashmir which was extended on 03.07.2019. Para (c)(ii) of the said Proclamation inter alia stated:

“the operation of the following provisions of the Constitution and of the State Constitution is hereby suspended, namely:–– “So much of the first proviso to Article 3 of the Constitution as relates to the reference by the President to the Legislature of the State and the second proviso to that article; …†[Emphasis provided]

First Proviso to Article 3

Article 3 of the Constitution of India relates to “Formation of new States and alteration of areas, boundaries or names of existing States.†First Proviso to Article 3 states:

“Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.†[Emphasis provided]

Second Proviso to Article 3

The second proviso in the President’s Proclamation of 19.12.2018 refers to The Constitution (Application to Jammu and Kashmir) Order, 1954, C.O. 48 which adds the following proviso to Article 3 of the Constitution of India:

“Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.†[Emphasis provided]

The Kingpin Provision

As earlier proclamations imposing President’s rule in Jammu and Kashmir included similar provisions, suspension of these did not invite any scrutiny this time also. Para (c)(ii) of the Proclamation remained unchallenged in a court of law all these months. But it is the kingpin provision which formed the basis of The Jammu and Kashmir (Reorganisation) Act of 2019 as the requirement of both the reference by the President to the legislative assembly of the State in first Proviso and the consent of the Legislature of the State of Jammu and Kashmir in the second Proviso were suspended. The conspiracy to do what got done in the first week of August, 2019 was hatched at least nine months back; the government laboured hard to keep it a secret; and then dropped the bombshell. With hindsight one wonders what if the validity of Para (c)(ii) of the Proclamation had been challenged in the Supreme Court earlier? Could it have back-footed the Government? Could it have helped change the course of events in August, 2019?

[Shobha Aggarwal is a Delhi based lawyer and member of PIL Watch Group. Email: pilwatchgroup[at]gmail.com]