In an order released on Thursday, Jammu and Kashmir High Court has allowed two National Conference MPs to meet party leaders Farooq Abdullah, under house arrest, and Omar Abdullah, detained at Hari Niwas, in Srinagar, but barred them from speaking to the press about the meeting. This statement of fact carries within it a grave predicament, a slippery slope. The communication lockdown and detention of political leaders and an unknown number of others in and outside Kashmir since August 5, after the Centre abrogated Article 370, goes on. And the court, which is the custodian of the citizen’s rights and freedoms and the centrepiece of the constitutional mosaic of checks and balances on executive power, seems not to be playing its part. Why must MPs who want to meet their leaders in Srinagar need the court’s permission to do so? Why is the court playing the role of the giver of such permissions in individual cases, even as it drags its feet on pronouncing on the legality or validity of the detentions themselves? Under which law or power can the court impose a virtual gag order on these MPs — they can meet but cannot tell? If there is a danger of a breach of peace because of what the MPs might say, which has certainly not been proved, it can, surely, be addressed by existing law. A few days ago, a CJI-led bench of the Supreme Court, on a habeas corpus plea of CPM general secretary, Sitaram Yechury, had allowed him to visit his ailing party colleague and 4-time MLA, Mohammad Yousuf Tarigami, after hedging the permission similarly. Yechury was directed to meet Tarigami but to do only that — he was to talk to no one else and file an affidavit to the court about what transpired in Kashmir. In another case, notably, it was the Supreme Court which had come down hard on prior restraint and expanded the contours of free speech and expression.
There are serious questions about the court’s conduct ever since the Centre moved to abrogate Article 370 and impose restrictions and curbs on the people in Kashmir over a month ago. The government has made its case — it has claimed that the detentions and lockdown are preventive in nature, for the people’s own safety and good. But that claim is being challenged not just by its political opponents but also by other concerned citizens. In a constitutional system, the court is the appropriate forum for those questions to be asked, for executive action to be interrogated, and adjudicated. But if the court appears to be not only shirking the fundamental question, but also reinforcing that executive action with gag orders of its own, there is reason to worry.
These are critical times, when a government elected with an overwhelming majority is taking consequential steps and all unelected institutions are called upon to define their remit and role. In times like these, what the judiciary does, and what it doesn’t do, is critical. The Supreme Court has posted the matter arising from Yechury’s plea challenging Tarigami’s detention for further hearing on September 16. It will be watched.