Turning the clock back: How the Supreme Court has dealt with cases arising out of last year’s abrogation of Article 370

Exactly one year ago, in a swift and somewhat foreseeable move, the Central government changed the special status of the erstwhile State of Jammu & Kashmir.

Executive orders passed to amend Article 367 to facilitate the abrogation of Article 370, and ultimately to scrap Article 370 itself, were passed on August 5 and 6 last year. Without wasting much time, a Bill to bifurcate the State into two Union Territories was tabled and passed in Parliament, and in no time, received Presidential assent.

The move to scrap Article 370 was followed by en masse detentions of opposition politicians, activists, and lawyers in the region. Further, a strict lockdown and a communications blackout were imposed, keeping the citizens of the area in the dark over the developments taking place in Delhi.

While most people lauded the Modi government for following up on its manifesto promise to abrogate Article 370, a significant minority questioned the mode and manner in which this decision was taken and executed. And so, various aspects of the BJP government's exercise came under challenge before the Supreme Court.

Did the Supreme Court do complete justice, or was the decision of the government fait accompli for the people of Jammu & Kashmir and Ladakh?

Petitions challenging abrogation of Article 370

The first challenge to the Presidential order was filed on August 9. A plethora of petitions filed by MPs from the National Conference, Kashmiri citizens, former bureaucrats, and various organizations followed.

While some petitioners brought up the requirement of consent from the Constituent Assembly for abrogation of Article 370, others questioned the validity of the President’s Rule that was in effect when the abrogation was made. Some pleas also go back to the Instrument of Accession, while some highlight the Supreme Court’s ruling of 2018 holding that Article 370 had gained a status of permanence.

Many petitions had also challenged the Jammu and Kashmir State Reorganization Act, by which the State was bifurcated into two Union Territories with effect from October 30.

On August 28 last year, the Supreme Court issued notice in the pleas despite vigorous resistance from Attorney General for India KK Venugopal and Solicitor General for India Tushar Mehta, who argued that issuance of notice would have cross-border implications. The Court, however, proceeded to seek the government's response and decided that a five-judge Constitution Bench would look into the issue.

Special Kashmir Bench

A five-judge Constitution Bench was set up on September 29 to hear the challenge to the abrogation of Article 370 and the State’s bifurcation. This Bench is headed by Justices NV Ramana and comprises Justices Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai, and Surya Kant.

A special three-judge Bench of Justices NV Ramana, R Subhash Reddy, and BR Gavai was entrusted with hearing all the other petitions arising out of this move, including some Habeas Corpus pleas and even the matters pertaining to media restrictions and the communications blackout.

Kashmir Times Editor Anuradha Bhasin, along with a handful of other petitioners, had questioned the restrictions that were imposed not only on the media, but also on movement and general communications in the region.

The hearings in the case spanned over the months of October, November, and December of 2019. During this time, the government told the Court that the people of the region were benefitting from the application of Central laws to the valley, and submitted that restrictions were being lifted in a phased manner.

On January 10 this year, the Supreme Court delivered its judgment, recognising the Constitutional protection granted to the freedoms of expression and profession through the internet as a medium. However, precious little translated to the ground.

Senior Counsel Kapil Sibal says that despite the Court passing a "pathbreaking judgment", it is not being implemented.

Almost seven months since this ruling, there is a contempt petition pending before the Supreme Court which alleges that the J&K authorities have not complied with the January 2020 judgment.

Apart from its implementation, the judgment has been criticised for leaving the question of validity of the restrictions to be assessed by a review committee set up by the same government that is imposing the curbs in the first place.

The end result is that a large part of the Jammu & Kashmir region is still facing internet restrictions, at a time when the country is reeling under a pandemic. As on date, the restrictions on internet speed in parts of the UT of J&K stand extended till August 19, while many parts are placed under curfew on August 4 and 5.

“The Supreme Court can always turn the clock back”, was an assurance that came from Justice Sanjay Kishan Kaul on October 1 last year, when the Court granted the government four weeks’ time to respond to the batch of petitions on Article 370.

This would mean that the bifurcation of the State into Centrally-administered Union Territories would be given effect on October 31, before the matter could be heard by the Court.

Between that day and today, many steps have been taken by the government to further concretise the bifurcation, even as the calls for reinstatement of Jammu & Kashmir's statehood get louder.

While the matter remained pending, a host of administrative, executive, and legislative changes stand effected in the Union Territories of Jammu & Kashmir and Ladakh.

Senior Counsel Dinesh Dwivedi believes that these are "cosmetic changes, only on paper", and that not much has changed on the ground.

With all these changes having taken place, is the hearing before the Court left merely as an academic exercise? How far can the Supreme Court actually turn the clock back?

Dwivedi says that a complete restoration of the situation pre-August 5, 2019, is possible.

The Habeas Corpus petitions filed in relation to the detention of political leaders and lawyers were treated with anything but urgency by the Supreme Court.

Pleas were filed for NC leaders Dr. Farooq Abdullah, Omar Abdullah, CPI(M) leader Mohammad Yusuf Tarigami, Congress leader Saifuddin Soz, PDP President Mehbooba Mufti, and Jammu & Kashmir High Court Bar Association President Mian Abdul Qayoom, to name a few.

Dwivedi says that the Apex Court ought to have shown some promptness in these matters.

No questions to the government on detentions

In the Habeas Corpus petition filed on behalf of former Chief Minister Farooq Abdullah, filed by MDMK leader Vaiko, the Court disposed the petition in light of the government officially detaining Abdullah under the Public Security Act (PSA), a legislation till then used only against terrorists, separatists and miscreants. The PSA was slapped against Abdullah shortly before the hearing was due in the Supreme Court. Abdullah was finally released from house arrest in March, 2020.

After many adjournments, the Court finally heard the Habeas Corpus filed for Congress leader Saifuddin Soz and decided to take the government’s submission on face value. According to the government, Soz was not under any restrictions or detention. However, reports emerged shortly thereafter showing Soz being manhandled by security personnel and prevented from talking to the press.

This trend is worrisome, Sibal says, and questions the basis for the Court to choose to believe the government's version in a case concerning someone's personal liberty.

Advocate Vrinda Grover opines that the impunity with which the government deals with detention matters under the PSA can only be curbed by the Court.

Long adjournments

The sense of urgency required to be attached to Habeas Corpus petitions was often found missing, with hearings in these pleas getting adjourned for want of an appropriate bench or for the government to file its replies. The Habeas Corpus petition filed for former Chief Minister Mehbooba Mufti, who is still under house arrest one year since the abrogation, is yet to be taken up.

In matters concerning Habeas Corpus, it is the "duty" of the Court to examine the facts and material weighed by the detaining authority, the Supreme Court's 1975 judgment in Khudiram Das v. State of West Bengal case says.

What was observed in the Apex Court's treatment of these Habeas Corpus Writs was a departure from the well-settled principles of law.

Grover says that despite the law mandating urgent redressal of this kind of petitions, the manner in which the Supreme Court has dealt with the matters is problematic.

Sibal seconds the notion that the Court's handling of these matters was in fact inconsistent with the law.

Merits of detention challenged, but not examined

Interestingly, the Supreme Court had not delved into the merits of any of these detentions. Detention orders, even when challenged, were not adjudicated on merits, with the Court often closing or adjourning the proceedings after the government’s assurance that the detenu would be released.

When Sara Abdullah Pilot questioned her brother Omar Abdullah’s prolonged detention under the PSA, the government sought time to reply. Before the Court could question the government on the merits of the detention, a decision was taken to revoke the PSA charges slapped on Abdullah, leading to his release and closing of the case.

Senior lawyer Mian Qayoom had moved the Apex Court challenging a contentious decision delivered by the Jammu & Kashmir High Court which upheld his detention based on FIRs lodged over ten years back. This judgment of the High Court remains untouched by the Supreme Court considering that the government assured the Court of Qayoom’s release from detention.

According to Dwivedi, if the detenues were given a proper hearing, they could have secured a release.

The only case thus far where the larger issue was left open was the Habeas Corpus filed for Mohammad Yusuf Tarigami. However, the plea has been put on the shelf for the time being, in light of Tarigami’s subsequent release.

Conclusion

Even as the scrapping of the special status of Jammu & Kashmir continues to divide opinion in the rest of the country, one year later, citizens living in the region continue to face the effects of the various moves that have been taken unilaterally by the government.

There has been widespread criticism of the Supreme Court's handling of the cases arising out of the move to abrogate Article 370.

When it comes to Jammu & Kashmir, Sibal thinks that a different approach seems to be adopted by the Supreme Court.

Going by Supreme Court's own words, "it is time for all wounds to be healed."