“Government of India should be congratulated for the manner in which they’ve handled this, without a single life lost, a single bullet fired. Don’t look at the nitty-gritty of Section 144. Look at the broader picture.”Attorney General KK Venugopal
The Union of India and the Government of Jammu and Kashmir (also governed by the Centre) went on the offensive in the Supreme Court on Thursday, 21 November, defending the restrictions imposed in Jammu and Kashmir since the abrogation of Article 370.
Taking strong exception to the petitions – which have argued that the telecom restrictions and prohibitory orders under Section 144 are illegal and unconstitutional –filed by Kashmir Times editor Anuradha Bhasin, Congress leader Ghulam Nabi Azad and other law officers representing the governments stressed on the threat of cross-border terrorism in the erstwhile state, and said that they would have been negligent if they hadn’t taken steps to curb law and order problems.
Solicitor General Tushar Mehta, representing the Government of J&K, began his arguments on Thursday, and will continue them on Monday, 25 November, when the judges aim to conclude hearings.
Attorney General KK Venugopal, appearing for the Union of India, has completed his brief submissions before the bench of Justices NV Ramana, BR Gavai and R Subhash Reddy.
Mehta submitted a status report to the apex court about the restrictions and how they’d been relaxed, noting that the prohibitory orders under Section 144 had been removed from all 195 police stations in Jammu and Kashmir and the 7 in Ladakh – some restrictions were imposed at night, but he said this was all.
He claimed that no restrictions had been imposed in seven police stations across the region, no restrictions had been imposed in Ladakh, and that there had been area-wise relaxation of restrictions after 5 August. All of this, he argued, indicated that there had been application of mind when it came to the restrictions in the former state, contrary to what the petitioners and intervenors challenging the restrictions had said.
The Solicitor General reiterated an allegation raised in one of the government affidavits that Anuradha Bhasin (whose petition had set the ball rolling in these cases) had chosen not to publish her newspaper from Srinagar even when all other newspapers were doing so, and had continued to publish from Jammu even when restrictions were limited, to ensure that her petition could still survive.
Mehta also argued that the petitioners had not brought to the attention of the court several facts about the “normalcy” of the situation in Jammu and Kashmir and Ladakh which had been set out in the government’s affidavits dated 30 September and 23 October.
He said this was consciously done as these averments ran contrary to their claims that “7 million people were locked down” and that “for 100 days everything is under shutdown”. The petitioners informed the court that they had submitted rejoinders to these facts in their subsequent affidavits, and are expected to present some counter-claims in a rebuttal on Monday.
Here are some of the other key highlights of the day’s hearing.
OpIndia Used to Dismiss Credibility of IndiaSpend
One of the arguments raised by the petitioners to demonstrate the hardship caused by the internet shutdown in Jammu and Kashmir was the effect this had on the Ayushman Bharat medical insurance scheme, which interestingly had seen high utilisation rate in the erstwhile state.
According to an article in IndiaSpend on 6 September, annexed to Ghulam Nabi Azad’s petition, Prime Minister Narendra Modi’s flagship scheme for the poor had ground to a halt in Jammu and Kashmir because hospitals could not register and process claims under the scheme, which have to be done online. The report was based on a ground report by Swagata Yadavar and Athar Parvaiz.
The Solicitor General claimed that the government had in fact put in place methods to do this offline, and that this assertion by the petitioners was therefore not valid. He said that under these methods, the patient would not need to pay for the services, and the doctor would end up assuming the risk of being reimbursed later by the government.
He also then sought to discredit IndiaSpend as just a website, a “one-laptop industry” and submitted an article by OpIndia to claim it was unreliable.
The OpIndia article – which had not been annexed or referred to in any of the government affidavits – was not a fact-check of the IndiaSpend article on Ayushman Bharat in Jammu and Kashmir, but was about a person named ‘Umesh’, who they say claims to be a fact-checker for IndiaSpend and The Wire.
OpIndia claims that this Umesh tried to manipulate a Dalit family that had been attacked by Muslims to show that there was no communal or hate angle to the crime.
In March 2019, The Economic Times reported that the Poynter Institute’s International Fact-Checking Network (IFCN) rejected OpIndia’s request for accreditation, after its assessor found evidence of non-partisanship and bias in their work – something which OpIndia condemned.
‘Rights Conferred, Not Taken Away’
The petitioners had made arguments on how the fundamental rights of the people of Jammu and Kashmir had been infringed by the restrictions imposed by the government – that in fact these weren’t just restrictions, but abrogations of rights, which is not allowed by law.
The Solicitor General countered this by saying that his argument was that “the rights of the people of Jammu and Kashmir were not taken away, but in fact were conferred on them for the first time in 70 years.”
There was initially some confusion at this argument as Mehta framed the petitioners’ claim as saying their rights under Article 370 had been taken away, when in fact they’d been arguing in these cases that rights under Article 19 of the Constitution (including freedom of speech, movement and to practice their trade or profession) as well as under Article 21 (the right to life and personal liberty) had been violated.
The fundamental rights under Articles 19 and 21 have been in place in Jammu and Kashmir since well before the abrogation of Article 370 – these were not the constitutional provisions which did not apply to the erstwhile state thanks to its special status. The judges pointed this out to Mehta, who said the argument that the whole population was being put under lockdown and treated as criminals was “hyperbole” and “rhetoric”.
Mehta then elaborated on the rights which had been conferred on the people of Jammu and Kashmir, including panchayat elections, benefits for Scheduled Castes and Scheduled Tribes and for safai karamcharis from these communities, who’d been denied rights under the old regime. He also emphasised that the Right to Education would now be applicable in J&K.
He also noted that the rights of women marrying outside of the state will be protected, and that juvenile justice laws and child rights will now be implemented in the state.
However, it should be noted that neither of these two issues were unaddressed in the former state. In 2002, the J&K High Court held that women from the region who chose to marry men from outside would not lose their residency and inheritance rights under Article 35A. Attempts to pass a law to bring back the disqualification failed, with bills brought to do this lapsing following protests.
J&K also had its own Juvenile Justice Act 2013, in line with previous Central legislation. It did not get an equivalent to the Central Juvenile Justice Act of 2015, which opened up the possibility of treating 16-18 year-olds as adults for prosecution of crimes – however, it would not be right to say that juvenile justice and child rights were conferred after the reorganisation of J&K.
Can’t Look at Letter of Orders to Assess Section 144 Orders
While the telecom shutdowns in J&K were made under the Temporary Shutdown of Telecom Services Rules 2017, the other restrictions and prohibitory orders were under Section 144 of the Code of Criminal Procedure (CrPC).
J&K used to have its own CrPC till 31 October, when the reorganisation took effect, but this was not materially different from the Central law, with Section 144 being the same (barring a single logistical reference).
Section 144 allows a District Magistrate or any other Executive Magistrate to issue temporary orders restricting or prohibiting movement, assembly, etc of persons in a particular area. From 4 August onwards, prohibitory orders under Section 144 were issued across Jammu and Kashmir.
Both Mehta and Venugopal made a curious argument about the way in which the courts can conduct a judicial review of Section 144 orders.
As noted at the start, the Attorney General said the court must not go into “nitty-gritty” of Section 144 orders, and that they must consider the “broader picture” – encompassing the troubled nature of the region, the threat of cross-border terrorism, and the way in which militants, Hurriyat leaders, stonepelters and others could threaten security.
Ironically, the Attorney General termed these restrictions in J&K (which he stated were necessary to deal with militants etc) as a “lockdown” on a few occasions, while Mehta had strongly objected to such a term being used to describe what had been done.
The Solicitor General argued that when considering the validity of Section 144 orders, the court is not to look at “the letter of the law or the orders”. He said the orders passed under Section 144 shouldn’t be scrutinised too closely as they were written by magistrates who don’t have a “legally trained mind”.
To support this point, Mehta cited the Babulal Parate judgment of the Supreme Court, which he said had been selectively referred to by the lawyers for the petitioners – Dushyant Dave had cited it to say that the powers under Section 144 is not “unlimited or untrammeled”.
According to Mehta, this judgment by a five-judge bench of the apex court emphasised that Section 144 could be used for preventive purposes, was meant to be a “speedy remedy” and that foreign judgments on civil liberties should not be used to assess restrictions on fundamental freedoms in India, which are governed by the reasonable restriction in Article 19(2)-(6).
He also noted the challenges the government had to deal with, and that they would have been remiss not to take action to protect the “99.9% percent” of the population of J&K who were happy with the actions of the Centre from the “minuscule minority” who were opposed to them, and from terrorists and militants.
Interestingly, a passage that Mehta sought to use to show that a Section 144 order could be passed by a magistrate based on personal information rather than an enquiry, makes it clear that regardless of how the magistrate is convinced of the need to impose a Section 144 order, the “order of the magistrate should set out the material facts of the case.”
The sections cited by Mehta deal with whether Section 144 was constitutional or not – the court eventually held that it was and that the order challenged in that particular case was legal. However, this is not the argument made by the petitioners.
One aspect which was more helpful to the Solicitor General’s argument was in that case, the judges held that the order which (applied to one place affected by trade union clashes only) would affect the innocent and the guilty alike, would not affect its legality as it was difficult to demarcate between them.
The petitioners had argued that blanket bans on protests across a whole state could not be constitutional and had referred to the Kameshwar Prasad case of the apex court to justify this – it will be interesting to see how the Solicitor General addresses this argument on Monday.