Habeas corpus to 4G services: Pleas in SC
NEWDELHI:August 5 marks the first anniversary of the effective abrogation of Article 370 of the Constitution that conferred special status on Jammu & Kashmir (J&K) and the reorganisation of the state into two Union territories. Numerous petitions have been filed in the Supreme Court against the changes. Here is a look at where those cases stand.
CHALLENGE TO REVOCATION OF ARTICLE 370
At least 23 petitions are pending before the Supreme Court challenging the Centre’s decision to end the special status of J&K by revoking the article. These petitions were heard in December 2019 and January 2020 by a five- judge constitution bench headed by justice NV Ramana.
Certain intervenors in the case then requested that the case be referred to a larger bench. This, they argued, was because two earlier SC judgments, Prem Nath Kaul (1959) and Sampat Prakash (1968), are in conflict with regard to the scope and intent of Article 370 and whether the provision was intended to be a temporary or a permanent one. Since both those judgments were delivered by benches of five judges, the intervenors asked the court to refer the issue to a bench of seven or more judges.
The central government and the Union territory of J&K opposed the reference and submitted that there was no conflict between the two judgments.
The Constitution bench heard the parties with regard to the reference and delivered its verdict on this limited aspect on March 2. It declined to refer the matter to a larger bench. The case has not been heard after that.
PETITIONS AGAINST LOCKDOWN
The abrogation of Article 370 was accompanied by a total shutdown of Kashmir to forestall protests. Telephone lines, mobile communication and internet services were stopped and restrictions imposed on the press and transport within the valley.
A slew of petitions were filed before the SC challenging such restrictions, which the petitioners argued were in violation of their fundamental right to speech and expression and the right to move freely under Article 19 of the Constitution.
The petitioners included editor of Kashmir Times newspaper, Anuradha Bhasin, and Congress leader Ghulam Nabi Azad.
A three-judge top court bench comprising justices NV Ram ana, R Subhash Reddy and BR Gavai heard the case and ruled on January 10 that all restrictive orders should be reviewed by the government.
Importantly, it held that freedom of speech and expression and freedom to carry on trade or profession through the internet was a fundamental right under Article 19 of the Constitution and any order suspending internet services can be only for a temporary duration and not for an indefinite period. Such orders should indicate the reasons for the necessity of such a shutdown and they should be put in the public domain, the court ruled.
While the court did sayon free speech and movement will be violative of fundamental rights, it did not strike down such prohibitions. Instead, it asked the government itself to review such restrictions. The practical impact of this judgment was little although the government subsequently eased many restrictions in the Valley.
PLEA FOR RESTORATION OF 4G SERVICES
A petition was filed before the SC in April challenging the order issued by J&K administration in March restricting the internet speed in mobile data to 2G. The petition by the NGO, Foundation for Media Professionals, prayed that 4G internet services be restored in J&K taking into account the Covid -19 pandemic.
The Supreme Court, in a judgment delivered on May 11, refrained from passing directions to restore 4G mobile internet services in J&K, instead constituting a special committee to take a call on the issue and examine the necessity to allow faster internet in certain areas of the newly formed UT. Subsequently, a contempt of court petition was filed by the petitioner in June pointing out that no action had been taken yet to comply with the SC’s judgment. The Centre told the SC that a special committee was constituted to review restrictions on mobile internet in J&K and it decided against offering any relaxation for the time being. The case is due to come up for hearing on August 7.
HABEAS CORPUS PETITIONS
Various Habeas Corpus petitions were also filed before the SC against detention of individuals. Four such petitions:
Omar Abdullah:
Former J&K chief minister Omar Abdullah’s detention was challenged in February by his sister Sara Abdullah Pilot. The top court on February 14 issued notice to the J&K administration but the petition became infructuous (pointless) after Abdullah was released on March 24.
Mehbooba Mufti:
Iltija Mufti , the daughter of former CM Mehbooba Mufti challenged Mufti’s detention under the stringent Public Safety Act (PSA) Act, saying that it was based on vague and slanderous grounds that demonstrated personal and political bias against her.
In her petition, Iltija Mufti said that the February 5 order shifting her mother from preventive custody to detention under the PSA was based on a dossier prepared by the superintendent of police, Srinagar, replete with personal remarks and in bad taste. The court issued notice to the Centre on February 26 but the matter has not been heard after that.
Saifuddin Soz:
This would be the most noteworthy of all the Habeas Corpus pleas from J&K in Supreme Court.
Congress leader and former union minister Saifuddin Soz’s detention was challenge before the Supreme Court on June 1 by his wife Mumtazunnisa Soz.
Soz, an octogenarian, has been under detention since August 5, 2019.
When the petition came up for hearing on June 8, the SC sought the response of the Centre and J&K. The Centre filed an affidavit in July stating that Soz was never under detention and the petition was frivolous. It was stated that Soz has been given security personnel for his protection and he is free to go anywhere.
The SC disposed of the case on July 29 after recording the centre’s stance. There was a twist in the tale as Soz was captured on video by TV channels stating that he was under house arrest. Interestingly, the order passed by the Supreme Court on July 29 disposing of the petition is yet to be uploaded on the website of the court.
Mian Abdul Qayoom:
President of the J&K high court bar association, Mian Abdul Qayoom was detained on August 5, 2019 under the PSA. He was subsequently shifted to Agra the same month and then to Tihar jail in January 2020.
Qayoom’s plea challenging his detention was turned down by the J&K high court on May 29. The high court held that Qayoom’s ideology was like a live volcano. Qayoom then appealed to the top court. A three-judge bench ordered Qayoom’s release on July 29 after the central government agreed to it.