SC refuses to pass order on lifting curbs in J-K

Satya Prakash
Tribune News Service
New Delhi, August 13

The Supreme Court has refused to pass an order on a Public Interest Litigation filed by activist Tehseen Poonawalla seeking lifting of prohibitory orders in Jammu and Kashmir in the wake of abrogation of Article 370, saying the situation in the state was “very sensitive”.

“The situation is such that nobody knows what exactly is happening there. Some time should be given (to the government) for bringing back normalcy,” a three-judge Bench headed by Justice Arun Mishra said adjourning the matter for two weeks.

“The government’s endeavour is to restore normalcy. That’s why they are reviewing the situation on a day-to-day basis. If tomorrow anything happens in Jammu and Kashmir, who will be responsible? Obviously, the Centre,” it noted.

The Bench—which also included Justice MR Shah and Justice Ajay Rastogi—said pros and cons of the issue had to be looked into before passing any orders.

“We are with you on the issue of right to liberty of the people. But we should have a real picture before us. “Wait for some time. Let us wait for normalcy to return,” the Bench told senior counsel Menaka Guruswamy who represented Poonawalla.

At the outset, Guruswamy said the government can restrict freedoms but it can’t impose complete ban on their freedoms.  She said due to shutting down of communication networks people were unable to speak to their loved ones during the festive occasion of Eid and Raksha Bandhan. She said at least it can be restored for hospitals, schools and police stations.

Her arguments were countered by Attorney General KK Venugopal and Solicitor General Tushar Mehta—who said the ground situation needed to improve before prohibitory orders were lifted and communication networks restored.

“Nothing can be done overnight. There are serious issues. Normalcy would return and we expect it will come with time. What is important is it has to be ensured that no life is lost,” said the Bench.

Venugopal said the government was reviewing the situation on a day-to-day basis and relaxations were being given based on reports from district magistrates about improvement in ground situation.

“We have to ensure that law and order in Jammu and Kashmir is maintained,” Venugopal said.

The Attorney General said 44,000 people had been killed in terrorist violence since 1990 as India continued to be at the receiving end of cross-border terrorism. Referring to the July 2016 agitation in Kashmir valley following encounter killing of terrorist Hizbul Mujahideen Burhan Wani, he said it had taken three months to restore normalcy. In the present situation, it will take few more days to restore normalcy there.

Noting during the July 2016 agitation, 47 people had died, Venugopal sought to emphasise that not even a single death had been reported since the restrictions were imposed in the state.

Guruswamy clarified that she was not making any comment on Article 370 and just wanted to highlight the issue of fundamental rights of citizens. “If the Government’s intention is to make Kashmiris full citizens, they can’t restrict them totally,” she added.

Towards the end of the hearing, she requested the Bench to ask the Attorney General to place a report on the ground situation in Jammu and Kashmir in a sealed envelope but the Bench did not pass any such order.

However, it said communications had to be restored as soon as the situation improved in the state.

The Bench asked her to give specific instances of rights violation then only it could pass orders. “Your petition is very poorly drafted,” it commented, prompting Guruswamy to request the Bench to allow her to amend the petition.

When she tried to bring difficulties faced by soldiers in getting in touch with their families, the Bench said, “Why you are raising grievances on behalf of soldiers? Your prayer is not this. Soldiers have to maintain discipline and if they have any grievance, let them come before us.”

Earlier, the Bench had asked Kashmir Times Executive Editor to approach the court’s Registry for listing of her petition challenging the restrictions imposed on journalists.

Certain other petitions, including those filed by National Conference MPs, challenging Presidential Orders making Article 370 inoperative were yet to come up for hearing.

In his petition, Poonawalla has demanded lifting of prohibitory orders and restoration of phone, internet and TV news services blocked since August 4. He alleged that people were unable to access even basic facilities such as healthcare, educational institutions, banks, public offices, food, vegetables and ration supply.

He has demanded that former chief ministers—Farooq Abdullah, Omar Abdullah and Mehbooba Mufti—and other political activists be released from house arrest and a judicial commission be set up to ascertain the ground situation.