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Tuesday, October 19, 2021

Delaying, not asking questions, on J&K — this doesn’t match SC tradition of speaking up for those who cannot

Deferring and delaying, not asking questions that need to be asked, giving the government the benefit of the doubt — serious doubt — on the drastic curbs on fundamental freedoms, doesn’t quite match the apex court’s own stellar tradition of speaking up for those who cannot.

By: Editorial |
Updated: October 4, 2019 2:04:40 pm
Kashmir news, Kashmir lockdown, Kashmir article 370, Supreme Court on Kashmir, Kashmir lockdown SC hearing, express editorial On very many occasions, the Supreme Court has protected and expanded citizens’ liberties.

The Centre’s move in Kashmir, a defining one for the Narendra Modi government, is also turning out to be a critical moment for the judiciary.

On October 1, responding to a raft of petitions challenging the constitutional validity of the August 5 decision to abrogate the special status of Kashmir, a five-judge constitution bench of the Supreme Court refused to order a stay, and adjourned the hearing to November 14 — that is, until well after the scheduled implementation of the Centre’s order has carved up the state into two Union Territories on October 31.

Earlier, addressing a separate batch of petitions questioning the restrictions on movement and communication that have accompanied the Centre’s decision, another SC bench held that “personal liberty will have to be balanced with national security”. The court has deferred such petitions, including one filed by CPM general secretary Sitaram Yechury questioning the detention of his colleague Mohammed Yousuf Tarigami, for hearing on October 16.

Something is seriously amiss in the response of the country’s apex court, and it is this: The court, which is the centrepiece of the system of checks and balances that keeps the political executive honest and accountable, that ensures due process and is the custodian of individual rights, is showing a striking lack of urgency.

In fact, deferring and delaying, not asking questions that need to be asked, giving the government the benefit of the doubt — serious doubt — on the drastic curbs on fundamental freedoms, doesn’t quite match the apex court’s own stellar tradition of speaking up for those who cannot.

This is especially troubling in habeas corpus cases where delay can have a costly human rights toll. The court’s dithering here recalls its most forgettable moment. In the ADM Jabalpur case during the Emergency, four judges out of five, with the honourable exception of Justice H R Khanna, had handed out virtual good conduct certificates to the government, expressing the hope, “diamond bright, diamond hard”, that the fears of the detenues would prove to be uncalled for. Of course, it made amends, overruled that embarrassing decision, in 2017. Yet, today, two years later, the judiciary’s lack of urgency in pronouncing on the validity of citizens’ detentions and the constitutional legitimacy of the government’s decision, is made worse by its apparent glibness in imposing gag orders of its own. Last month, the J&K High Court allowed two National Conference MPs to meet Farooq Abdullah and Omar Abdullah, detained in Srinagar, but barred them from speaking to the press about the meeting. Earlier, a CJI-led bench of the SC had allowed Yechury to meet Tarigami after hedging the permission similarly.

On very many occasions, the Supreme Court has protected and expanded citizens’ liberties. For its own sake, and that of the people who look up to it, especially those men and women — and in J&K, children, too — who are denied their rights in the name of “national interest”, it needs to step up to its role.

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