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Wednesday, February 26, 2020

Challenge on J&K: SC gives govt more time, defers hearing to November 14

Attorney General K K Venugopal appeared for the central government. Appearing for the J&K government, Solicitor General Tushar Mehta sought four weeks to file the reply.

Written by Ananthakrishnan G | New Delhi | Updated: October 2, 2019 4:40:32 am
Petitions have also been filed by former IAS officer Shah Faesal, activist Shehla Rashid, and advocates Shakir Shabir, M L Sharma, Vineet Dhanda, and others.

THE REORGANISATION of Jammu and Kashmir into two Union territories is all set to proceed as scheduled on October 31 with the Supreme Court Tuesday not ordering a stay and adjourning hearing to November 14 on a clutch of petitions challenging the Constitutional validity of the Centre’s decision to revoke special status granted to the state under Article 370.

A five-judge Constitution bench headed by Justice N V Ramana allowed requests from the Centre and the J&K administration seeking more time to file a written response to the petitions. “The court can put the clock back… But it cannot hear such a matter without getting a response from the government,” said the bench also comprising Justices S K Kaul, R Subhash Reddy, B R Gavai and Surya Kant.

Later, hearing a separate batch of petitions questioning the restrictions on movement and communication in J&K, following the government’s August 5 move on Article 370, a three-judge bench of the apex court said that “personal liberty will have to be balanced with national security”.

Earlier, the Constitution Bench conveyed its decision on fixing the date of hearing to Senior Advocate Raju Ramachandran who appeared for one of the petitioners and requested the court to order a status quo or hear the matter before October 31. Ramachandran argued that hearing the pleas after October 31 would render them infructuous.

Attorney General K K Venugopal appeared for the central government. Appearing for the J&K government, Solicitor General Tushar Mehta sought four weeks to file the reply.

Objecting to the request, the petitioners submitted that on the last date of hearing, the court had asked the Centre and J&K to submit their replies, which has not been done. They contended that if a delimitation exercise happens after reorgansiation, it may not be possible to reverse it.

The Jammu and Kashmir Reorgansiation Act of 2019 reorganises the state into two Union Territories of J&K and Ladakh. The Act was promulgated following the proclamation by the government amending Article 370 and revoking the special status granted under it to J&K.

The court, which is already seized of several petitions on the issue, also directed its Registry not to accept any more pleas on the validity of the Act.

After the Constitution bench hearing, a three-judge bench of Justices Ramana, Reddy and Gavai took up petitions questioning detentions and a communication blackout in J&K after its special status was revoked.

Appearing for Kashmir Times Executive Editor Anuradha Bhasin, Advocate Vrinda Grover sought to draw the court’s attention to what she described as continuing curbs. Appearing for another petitioner, Senior Advocate Meenakshi Arora said the pleas raised the larger question of fundamental rights and asked: “Can fundamental rights be pushed under the carpet?”

Some of the lawyers representing the petitioners said 57 days had passed since the communication blackout. Solicitor General Mehta responded: “A few years ago, a dreaded terrorist was shot dead and Internet was shut down for three months. Where were these activists then?”

At this juncture, Senior Advocate Sanjay Hegde said he was representing a Kashmiri student who was unable to speak to his parents back home because of the lack of telephone services. Mehta replied that all landlines were working. The bench also said it had seen reports that landlines had started working.

Hegde then said his client’s parents did not have a landline. Justice Reddy referred to the previous order of the court in which it had asked the state to restore normalcy at the earliest.

When Hegde said this was yet to happen, Justice Gavai pointed once again to the previous order. “Don’t read it piecemeal. The order is subject to overriding concerns of national security,” he said.

On Internet restrictions, Mehta said if the curbs were not enforced, “the country will be flooded with fake WhatsApp messages from across the border”. He also said that Internet kiosks had been opened for the public.

During the hearing, Justice Gavai noted that activist Tehseen Poonawala, too, had filed an application and enquired if he had also been a petitioner in the Judge B H Loya death case. On being informed that he was, Justice Gavai said Poonawala had made some allegations against him in the Loya case and sought to know if he had any reservation on him hearing the present batch of pleas.

Arora, who was representing the applicants including Poonawala, said she will delete his name and proceed with the others. Poonawala was the main petitioner in the Loya death matter in the Supreme Court — the apex court had ruled out any foul play in the death.

The court adjourned these petitions — as well as a petition filed by CPM leader Sitaram Yechury questioning the detention of party colleague Mohd Yusuf Tarigami, and another by Congress leader Ghulam Nabi Azad — for hearing on October 16.

Among those who have approached the court are National Conference MPs Mohammad Akbar Lone (Baramulla) and Hasnain Masoodi (Anantnag). They argued that the Centre unconstitutionally used the Act to undo Article 370, and “substitute the concurrence of the Governor for that of the Government”. This, they argued, “effectively… amounts to the Central Government… taking its own consent… to change the very character of a federal unit”.

The Presidential Order on the government’s decision, the petitioners argued, used “a temporary situation meant to hold the field until the return of the elected government, to accomplish a fundamental, permanent, and irreversible alteration of the status of the State of Jammu and Kashmir without the concurrence, consultation or recommendation of the people of that State, acting through their elected representatives”.

This, they said, amounted to an “overnight abrogation of the democratic rights and freedoms guaranteed to the people of the State… upon its accession”.

The court is also seized of a separate petition by Radha Kumar, a former member of the Home Ministry’s Group of Interlocutors for J&K, and others, contending that the amendments “strike at the heart of the principles on which the State of J&K integrated into India… especially as they had no affirmation/sanction from the people of J&K (which) is a constitutional imperative…”.

Petitions have also been filed by former IAS officer Shah Faesal, activist Shehla Rashid, and advocates Shakir Shabir, M L Sharma, Vineet Dhanda, and others.

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