IS LIKELIHOOD OF TERRORISM ENOUGH?

He then turned to the “bogey of terrorism” used by the government to justify its actions in J&K. He began by referring to a 1999 judgment of the Israeli Supreme Court . In this judgment, the Israeli court famously held that the courts could not countenance torture as a form of interrogation even if this meant the state was fighting with their hands tied behind their backs, and that the courts could not allow national security considerations to trump the law. Dave pointed out that if this was how the law was to be interpreted in Israel, a country constantly threatened by terror threats, surely the government couldn’t suggest a different approach in India. “They can't take shelter under likelihood of terrorist acts”, he argued, “or they can next make this same argument anywhere in the country.”

THE EXAMPLE OF HONG KONG

His next argument seemed to strike a chord with several people in the courtroom. Huzefa Ahmadi had been appreciated for submitting to the judges the recent judgment of the Hong Kong High Court striking down the HK government’s ban on face masks as unconstitutional.

THE FORESIGHT OF THE CONSTITUENT ASSEMBLY DEBATES

He then read out several evocative speeches from the Constituent Assembly Debates, to counter the government’s claims that the court had no authority to examine the decisions taken by the government for national security or in national interest. Chief among these were statements by Dr BR Ambedkar, including the one where he said that Article 32 (which can be used by individuals to approach the Supreme Court for protection of fundamental rights) was the beating heart of the Constitution. Dave said Ambedkar had said this because the court was to play an important role to ensure a government elected with a majority couldn’t run roughshod over the fundamental rights:

ILLEGAL RESTRICTIONS ON LIBERTY AND FREE SPEECH

Next, Dave took the judges through several landmark judgments of the Supreme Court in the 1960s dealing with the scope of restrictions that can be allowed on personal liberty. He drew their attention to how the judges in these verdicts had clearly held that restrictions on demonstrations and free speech could not be overbroad and impact the innocent and guilty alike. He also addressed some arguments specifically in the context of the restrictions on internet and other telecom services, including That citizens had a fundamental right under Article 19(1)(a) to discuss and learn about “the burning topic of the day” (from the Sakal Papers case ); That the government’s own telecom policy recognised that “telecom, including broadband connectivity as a basic necessity like education and health” (see Chapter 4, para 1.2 of the National Telecom Policy 2012 which remains in force).

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Modi Govt’s ‘Casual Approach’ to Kashmir Cases Slammed in SC

Senior advocate Dushyant Dave criticised the cavalier attitude & even the judges pulled up the government’s lawyers.

Vakasha Sachdev

Published: 19 Nov 2019, 10:40 PM IST

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“We are slowly becoming a police state. And only your Lordships can stop that from happening.”

On Tuesday, 19 November, senior advocate Dushyant Dave delivered some powerful broadsides against the Centre’s actions in Jammu and Kashmir during a Supreme Court hearing on cases challenging the restrictions imposed in the erstwhile state at the time of the abrogation of Article 370.

Dave was arguing for the Foundation for Media Professionals, a journalists’ body which has intervened in the original petition filed in the apex court by Anuradha Bhasin, executive editor of The Kashmir Times.

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Modi Govt’s ‘Casual Approach’ to Kashmir Cases Slammed in SC

Senior advocate Dushyant Dave criticised the cavalier attitude & even the judges pulled up the government’s lawyers.

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Topics: Article 370 Jammu and Kashmir Supreme Court