How Modi Govt’s ‘Mission Kashmir’ is Being Challenged in SC
Video Editor: Mohd Irshad Alam
On 5 August, the Modi government ended Jammu and Kashmir’s special status under Article 370 of the Constitution of India. The Jammu and Kashmir Reorganisation Act 2019 was passed to bifurcate the state into two union territories a day later.
Curfews and a telecommunications blackout (including an internet shutdown) have been in place since the night of 4 August. Political leaders, including former chief ministers Omar Abdullah and Mehbooba Mufti and former IAS officer Shah Faesal, have been placed under preventive detention – and so have hundreds of other people with any sort of public profile, including business leaders and now even journalists.
But is all of this legal?
Several petitions have been filed in the Supreme Court of India challenging all of the developments in Jammu and Kashmir. Here’s what is being argued, and who the key players are in the challenges.
1. Abrogation of Article 370 Was Unconstitutional
The first PIL on this was filed by serial PIL filer ML Sharma, followed by Kashmiri advocate Shakir Shabir. Sharma’s petition was heavily criticised by the Chief Justice of India, Ranjan Gogoi, on Friday, 16 August, for numerous defects and incomprehensible arguments.
The most comprehensive petition thus far is the one filed by National Conference MPs Mohd Akbar Lone and Hasnain Masoodi. Drafted by advocates Gautam Bhatia, Malavika Prasad and Rahul Narayan, the petition argues that Article 370 could not be used to modify itself as the government did in its two presidential orders.
A key issue here is how the Centre used first, the governor and then Parliament as stand-ins when they were supposed to be getting the concurrence and recommendations of the state government. The petition argues that this was not permissible and violated the procedures set out in Article 370 to apply constitutional provisions and modify Article 370.
2. Reorganisation of Jammu and Kashmir as Union Territory is Unconstitutional
The petition filed by the National Conference MPs also includes arguments on the reorganisation of the state into a Union Territory (which will come into force on 31 October).
Lone and Masoodi argue that while Parliament can carve away parts of a state to form a new UT or add to an existing State or UT, it does not have the power to downgrade a state to the status of a UT. This argument is based on Article 3 of the Constitution, which gives Parliament power to make new states and UTs.
They also argue that the reorganisation is an attack on India’s federal structure, and the removal of J&K’s autonomy and designation as a state violates the fundamental rights of the people of J&K.
3. Release Prisoners, End Curfew and Blackout
Activist Tehseen Poonawalla filed a petition in the Supreme Court on 8 August challenging the way in which people are being detained in J&K (particularly those who aren’t even political leaders) and also asked for the curfew imposed in the region to be lifted. He has also challenged the blocks on phone and internet services to be removed.
He claims that these measures are a violation of the fundamental rights of the people of J&K, including the right to life and personal liberty (Article 21), as well as free speech and movement.
The apex court conducted a hearing in the matter on 14 August, where it asked him to correct defects in his petition. Senior advocate Menaka Guruswamy represented him in court, and sought an urgent hearing of the case. However, following interventions by the Attorney General who said the government needed to maintain these measures to ensure security and public order, the court decided to take the matter up again on 28 August.
4. Curbs on Media Freedom Are Illegal
A petition has been filed by Anuradha Bhasin, Executive Editor of the Kashmir Times, challenging the restrictions imposed in Kashmir because of the shutdown of internet and telecom services.
She has alleged that these have resulted in serious difficulties for journalists in terms of movement and communication. Her petition argues that these restrictions are a violation of the fundamental rights of journalists in Kashmir under Article 14 (equal treatment) and Article 19 (freedom of speech).
She has also challenged the information blackout as a violation of the rights of the people of J&K, including the right to life, because of the panic, alarm and fear it has helped create.
The apex court on Friday, 16 August, decided to hear all these matters together, presumably on or after 28 August. The matters are not being taken up on an urgent basis. Given the scope of what’s been done, this raises concerns that the end of Article 370 and the bifurcation of Jammu and Kashmir will be a fait accompli, since with the passage of more time, it would get more difficult to reverse these decisions even if the Supreme Court finds them unconstitutional.
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