On Thursday, 30 July, Mian Abdul Qayoom, the president of the Jammu and Kashmir High Court Bar Association, was finally set free, nearly a year after he’d been detained as part of the Modi government’s measures to contain the reaction to its abrogation of Article 370.
Well, technically Qayoom wasn’t entirely free.
As part of the arrangement for his release, negotiated during Supreme Court hearings between his lawyers and the Solicitor General of India while the judges acted as benign mediators, the veteran senior advocate had agreed that he would not travel back to his home in the erstwhile state of Jammu and Kashmir till 7 August, and would not issue or make any public statements.
On the upside, as the judges noted benevolently, at least he could now celebrate Eid with his family.
In the order recording this happy and hopeful development, the apex court appreciated the ‘constructive approach’ taken by the government and Qayoom’s representatives, as a result of which “we are not called upon to examine the legality and validity of the impugned judgments and we leave it at that.”
These words, unfortunately, are a perfect encapsulation of the Supreme Court’s approach to the seismic and sensitive cases arising from the events of 5 August 2019.
An approach that has seen habeas corpus petitions against possibly illegal detentions ignored, the constitutional challenges to the end of J&K’s special status delayed to the point of becoming a fait accompli, and the abandonment of the people of J&K to crippling internet restrictions that are unthinkable in the modern age.
All of which have meant that the court has avoided making a single major decision on the legality of the moves that changed seven decades of history, and forever altered J&K’s relationship with the rest of India – all done without any consultation with the people, if one can be bothered to remember that little fact.
WHAT’S SO BAD ABOUT THIS APPROACH?
Now you might wonder, why is this a bad thing? Why should the court have to make decisions on the legality and validity of detentions like Qayoom’s? What does it matter if the court hasn’t ruled on whether the government’s method of taking away J&K’s special status and downgrading it from a state to two Union Territories was constitutionally valid? The people of J&K don’t have 4G internet, but people lived without it before, right?
The number of detainees has gone down from over 6,000 to something like 400. Political leaders like Farooq Abdullah, Omar Abdullah, Mehbooba Mufti and Saifuddin Soz (maybe?) have been released now. Even Qayoom now gets to go home. And all of this comes with the cooperation of the government, without having to get into any uncomfortable conversations with the government about violations of human rights, and nitpicking over whether the right procedure was followed for any of this.
It is perhaps tempting to do as the Supreme Court says in its order in Qayoom’s case and “look to the future” and be “hopeful” about the situation in J&K.
Unfortunately, that’s not how a constitutional court is supposed to function, and Qayoom’s case is a perfect example of the consequences of this kind of approach.
The Totally Necessary Detention of Qayoom Under the PSA
- After being detained under the CrPC on the night of 4/5 August 2019, Qayoom’s detention proper began on 7 August 2019, on the orders of a magistrate under the draconian Public Safety Act, which allows preventive detention of people in J&K if they are considered a risk to “public order” or the “security of the state”.
- As this is preventive detention, there is no need for the person to have committed any offence, the authorities just need to have sufficient reason to think they are such a risk. However, the material for this has to be submitted to an Advisory Board, which sees if the material actually merits detaining the person.
- In Qayoom’s case, the deadly material that ‘justified’ his detention included some FIRs from 2008 and 2010 over unrest in Kashmir at the time (for which previous detention orders had been long revoked), an unsubstantiated claim that he was involved in the agitations following Burhan Wani’s death in 2016, and his “secessionist ideology”.
- The detention order passed by the magistrate basically reproduced the police’s PSA dossier without any further application of mind. The case diaries and materials relied on to justify his detention were not provided to Qayoom after his detention, despite a requirement to do so under the PSA.
- When his detention was extended beyond the initial three months envisaged under the PSA, no new material was provided.
The J&K High Court Takes Inspiration From Minority Report
The J&K High Court dismissed a habeas corpus petition filed by Qayoom’s wife on his behalf. This was appealed in the J&K High Court before a division bench, which upheld the decision, despite noting that most of the grounds of detention specified were “somewhat clumsy”, and acknowledging that the detention order and police dossier were a verbatim reproduction of each other.
The key ground to agree to Qayoom’s detention, however, was his ideology. This “secessionist ideology”, which had caused him to lead processions of the bar association back in 2008 and 2010 continued to be held by him, so even though the FIRs related to incidents from so long ago, there could be a genuine fear he would be a threat to public order.
In what starts to sound like that dystopian Philip K Dick story about thought crimes that was made into a successful movie starring Tom Cruise, the high court then went on to wax lyrical about the dangers of this secessionist ideology:
“Having considered the matter, we may say that an ideology of the nature reflected in the FIRs and alleged against the detainee herein is like a live volcano. The ideology has always an inclination, a natural tendency to behave in a particular way.”
According to the high court, if you have an ideology, which has the potential to be a disturbance in public order, such as those in FIRs from 10 years ago and for which you were never convicted of any crime, then we don’t consider that all that stuff was in the past. You can be considered to always be a threat to public order, merely by virtue of an opinion you hold, even if you have not acted on that in any way in the past decade.
The Supreme Court’s Chance to Make Things Right
Now you don’t need to be a fan of Minority Report or 1984 or any classic dystopian fiction to realise that this is not fair. And as Qayoom’s lawyers pointed out, the Supreme Court had struck down detention orders relying on old, stale incidents.
But the high court disregarded all those precedents, all those basic concepts of fairness, because, oh no, secessionist ideology (for which there was no real evidence). It also acknowledged that there was Supreme Court precedent to strike down a detention order which was basically the same as the police dossier which it is based on, but look in this case the magistrate wrote at the end that he had applied his mind, so obviously he did, despite the copy-paste job.
You could hardly fault for Qayoom or his representatives for thinking that they would get justice when they appealed this disastrous judgment of the high court in the apex court, given its glaring flaws.
And yet now, thanks to the ‘generosity’ of the Centre in saying they wouldn’t extend his detention after it expired on 6 August, there will be no judgment from the Supreme Court condemning the gross violation of the fundamental right to liberty by the J&K High Court. The detention of Qayoom by the authorities will not be quashed and declared illegal, despite being on such flimsy grounds.
In fact, not only do those egregious decisions not get the dressing down they deserve, but the high court’s bizarre reasoning about volcano-like ideologies – which amounts to punishment for thought crimes, according to retired judges and experts like Justice AP Shah – can now be used as precedent to justify the detentions of other people in J&K in the future without them having committed any crimes.
One might argue that this was an appeal case, and once Qayoom’s lawyers agreed to the release as proposed by the government, the Supreme Court could not have done more. But that’s not necessarily true.
The day when the Centre agreed to release Qayoom, 29 July, was the fourth date of hearing in this case. On the previous days, the court had not pushed for arguments on the legality of the J&K High Court’s order, even though that was what the case was about. Qayoom’s lawyers sought to argue against his detention on these grounds at the time, but the court just moved into mediation mode the moment Solicitor General Tushar Mehta asked for more time and said he’d ask for instructions to release Qayoom.
What was at stake here was not just getting Qayoom out of jail – it was also about deciding whether or not his detention had been legally valid in the first place. The Supreme Court is supposed to protect people from illegal detentions by the government even during an Emergency (see the striking down of the ADM Jabalpur judgment in the right to privacy case).
And yet here, even though there is no Emergency in place, the court wasn’t particularly fussed about going into the legality of the detention or the judgment upholding it, because ah well, he was going to be released now anyway. So why get into the previous 360 days the person had been in custody.
For the Centre and the J&K authorities, even more than Qayoom, this decision became a get out of jail card. There is no scrutiny of decisions which are manifestly unfair, and they also get a lovely new high court precedent to punish the mere thought of dissent against the state – which basically puts any Kashmiri who doesn’t want to celebrate the abrogation of Article 370 in the dock.
HOW THE SUPREME COURT’S APPROACH HAS PLAYED OUT OVER THE PAST YEAR
Sadly, this willingness to avoid making any decisions, often despite misleading information from the government, has been a constant from the Supreme Court when it has come to cases from J&K during the last year.
Yechury’s Road Trip
In a habeas corpus plea for CPI(M) leader Mohammed Yousuf Tarigami, instead of looking into the grounds for his detention, the court created an entirely new approach to habeas corpus by “allowing” CPI(M) leader Sitaram Yechury to go from Delhi to visit him, provided he undertook not to go anywhere else in J&K, and not engage in any ‘political activities’.
How letting a friend meet a detained person, and that too after imposing conditions which had no basis in law (there was no prohibition at the time for people form outside J&K to visit the region) is a substitute for examining the validity of their detention, is baffling.
These Are Not the Illegal Orders You Are Looking For
In the Anuradha Bhasin case, which challenged the restrictions imposed under Section 144 and the communications blackout, the Supreme Court held that the way in which these restrictions were imposed had been illegal in many instances, and that correct procedures for these had not been followed.
However, no conclusive determination was given on these issues as all the orders hadn’t been placed by the government before the court (!!!) and there were no consequences for the government, which was merely given a slap on the wrist five months too late and told to follow the rules better going forward.
Is That a Gun on a Kanpatti?
Union Home Minister Amit Shah got up on the floor of Parliament on 6 August 2019 and claimed MP Farooq Abdullah was not being detained, although Abdullah begged to differ, as he insisted he was under house arrest. A habeas corpus petition was filed for his release by MDMK politician Vaiko. On 16 September, just when the court was about to hear the petition, the J&K government slapped a PSA detention order against the former chief minister.
At this point, instead of asking the obvious questions about how Abdullah had been detained prior to 16 September and assessing if this detention was legal, the Supreme Court decided there was no more need for this petition and dismissed it. There is no guarantee that the court would have found that the detention was illegal, but anyone with a basic understanding of the law would agree that the question had to be asked.
The Fait Accompli Awakens
The constitutional challenges to the abrogation of Article 370 and the reorganisation of the state, despite involving monumental issues of constitutional law, have remained in cold storage since January this year. The court announced its decision not to refer the case to a larger 7-judge bench on 2 March, and said that it would be taken up after the oh-so-urgent Sabarimala reference case. This already follows the cases being considered less of a priority than the Ayodhya case by former Chief Justice of India Ranjan Gogoi, despite it directly affecting the lives of 1.3 or so crore people.
When these constitutional challenges had belatedly been assigned to a Constitution Bench headed by Justice Ramana in October, the court declined to stay the operation of the J&K Reorganisation Act, which came into force on 31 October 2019 and bifurcated the state into two Union Territories, even though this would have been the logical thing to do.
Not granting a stay makes it incredibly difficult and expensive to roll back even if the court were to find the Centre’s handiwork to be unconstitutional. And by not deciding these cases, the court is effectively deciding them in the government’s favour.
That Meme of Spiderman Pointing at Spiderman
When it came to the 4G ban, again, instead of reviewing the government’s decision and seeing if its severe effects on education, healthcare and business in J&K were necessary or proportionate, the court left it to a Special Committee made up of Central and J&K bureaucrats to decide whether their own governments got it right on limiting internet speed in the valley.
No surprise that this committee didn’t bother making its proceedings public and only informed the court that surprise, surprise, it had upheld the government ban, when a contempt case was filed against the government.
HOW LONG CAN THIS GO ON?
At the end of the day, what it comes down to is the role a constitutional court is supposed to play when it comes to moments like this. The Modi government’s move can be debated on several fronts: whether it was really needed from a security point of view, whether Article 370 and Article 35A were an impediment to development, whether it was right for Kashmir to get ‘special treatment’ as the RSS has always complained about.
But these were the very issues the Supreme Court chose to ignore.
The Supreme Court has to see if the rules were followed when doing all this – whether the convoluted amendment of Article 370 with the Governor and Parliament taking decisions which the elected assemblies of J&K were supposed to take, was legal.
The Supreme Court has to see if people’s fundamental rights have been violated or not – even if the government is vehemently insisting they are doing just fine.
The Supreme Court has to assess if the detention of political prisoners and dissenters is legal, because you can only be deprived of liberty according to procedure established by law, even if that period of detention is now over.
The powers of the Supreme Court under Article 32 of the Constitution, to conduct judicial review of government decisions and exercise writ jurisdiction to ensure fundamental rights are not violated, were described by Dr BR Ambedkar as “the soul of the Constitution, the very heart of it”.
If these powers are not utilised, the people of the country are left to the mercy of the government; they are subjects, not citizens with rights.
But in its willingness to accept the government’s word without question, in its call to avoid making decisions about the legality of the government’s actions, the Supreme Court has done just that: left the people of J&K at the mercy of the government.
- Which is why children don’t have access to education using the internet in the way children in every other part of the country have.
- Which is why businesses which relied on using the internet have been devastated.
- Which is why Mehbooba Mufti remains under detention despite the material justifying her detention being filled with misogynistic, sexist innuendo.
- Which is why the government can come and tell the court that Saifuddin Soz is not being detained, even as he scales his wall to say he is and then gets dragged away by the police.
It’s been a year now. Surely, this has to change, and the court has to stand up for the people of J&K. Otherwise, as Justice Shah says, the Constitution will remain a mirage, just some words on a piece of paper.
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