Deciding by NOT Deciding: Takeaways From SC’s Kashmir Hearings

An example is how reorganisation of J&K takes effect on 31 October, but challenge will only be heard on 14 November.

The Supreme Court is taking a long time to hear cases on matters pertaining to Kashmir.

(Photo: Erum Gour/The Quint)

The Supreme Court on Tuesday, 1 October, conducted hearings on various cases relating to Jammu & Kashmir but continues to avoid any sort of urgency in hearing them, creating a curious situation where a decision of sorts is being made in each without any actual decision being made.

There are three broad types of cases before the apex court:

1. The ‘Abrogation-Reorganisation’ Cases: 10 writ petitions challenging the abrogation of Article 370 and the reorganisation of J&K into two Union Territories.
2. The ‘Restrictions’ Cases: Petitions challenging the restrictions imposed in J&K following the Modi-led government’s moves in the region since 5 August – including those by Kashmir Times’ Executive Editor Anuradha Bhasin, child rights activist Enakshi Gnaguly, and Congress leader Ghulam Nabi Azad.
3. The ‘Detention’ Cases: Habeas corpus petitions filed challenging the detention of various people – including those filed by Sitaram Yechury for his colleague MY Tarigami, and by business leader Mubeen Shah’s wife on his behalf.

The Abrogation-Reorganisation Cases will be heard next by the five-judge Constitution Bench set headed by Justice NV Ramana on 14 November after the Centre requested four weeks’ time to respond to all petitions.

The Restrictions Cases will be heard next on 16 October, with the Centre to respond to most of them till then. Solicitor General Tushar Mehta has already submitted a counter-affidavit against Anuradha Bhasin’s petition.

The Detention Cases will be heard after two more weeks or so as well, after some desperate haggling by lawyers for the detained persons, on the basis of the court’s previous orders keeping certain cases open, and the hardship they would cause if they were not heard.

Justice Ramana is also heading the three-judge Bench hearing the Restrictions Cases and the Detention Cases, after Chief Justice of India Ranjan Gogoi transferred all the cases to him on Monday, 30 September. Unfortunately, the files were sent to his and the other two judges’ offices only at around 9 pm on Monday, a member of the court staff informed The Quint.

The court did not get to go into the merits of either of these cases which may cause one to wonder how these hearings could actually have any actual impact on them.

The answer is that sometimes “by refusing to decide, the Supreme Court effectively does decide”, as constitutional scholar Gautam Bhatia presciently put it over two years ago.

Here are three things we learned from the hearings:

Govt Benefits From Own Failure to Reply to Petitions

On 28 August, notice was issued in nine of the 10 Abrogation-Reorganisation Cases by the Supreme Court. This means they had decided to hear the cases and wanted the respondents in the petitions – the Central Government and the J&K Government – to file their responses.

The court’s order expressly said that the cases were to be taken up in the first week of October, and that the parties were to exchange pleadings in the meantime.

(Photo: Accessed by The Quint)

Despite having over a month to respond to these nine petitions, the Centre failed to send a response to any of them.

On Tuesday, Attorney General KK Venugopal, appearing for the Centre, argued that so many petitions have been filed challenging the abrogation of Article 370 and the reorganisation of J&K that they need more time to respond – saying specifically that new petitions had been filed as well.

However, only one petition had been filed after the court order on 28 August, and the issues in the petitions are essentially the same: whether the procedure followed for Presidential Orders for the abrogation as well as the reorganisation were in accordance with the Constitution.

Thus, the same reply could have been sent in response to all of them. The tenth petition was also filed on 13 September, surely not filed a few days ago.

Hence, basically, the government has dragged its heels over responding for over a month, and because they did so, are getting another month to respond to petitions they have had more than enough time to respond to already. Given the Centre was supposed to have got legal advice on all this before any of its moves in Kashmir, it’s strange that it needs so much time to respond to some fairly straightforward issues.

Of course, the longer the arguments are deferred, the longer the government gets to tout what it’s done, which helps give what they’ve done a degree of legitimacy of its own. And to maybe even come up with some new arguments on why everything they’ve done is above board.

J&K Reorganisation: a Fait Accompli?

The moment the judges said they were agreeing to the government’s request for four more weeks to respond to the Abrogation-Reorganisation Cases, loud murmurs rippled in Courtroom 3.

This is because the delay makes it clear that the court will NOT decide on the constitutionality of the bifurcation of J&K and it being downgraded from a State to Union Territory by 31 October.

Which, of course, is the date when the Jammu and Kashmir Reorganisation Act 2019 – the Act of the Parliament which makes the bifurcation and downgrading happen – comes into force.

The lawyers for the petitioners tried to point out that if the court did eventually find that the reorganisation was unconstitutional, implementing this would be much more difficult if the Reorganisation Act had already come into force.

To avoid unnecessary financial and administrative hurdles, they requested the court to consider some sort of stay on the operation of the Reorganisation Act till the court had decided the case one way or another. One of them suggested something similar to the way the bifurcation of Andhra Pradesh had been dealt with a few years ago.

These concerns were brushed aside by the judges, who insisted that the Reorganisation Act could be rolled back if they ruled against it.

While it is true that any steps taken to implement the Reorganisation Act could be rolled back if the Constitution Bench strikes it down, the logistics of doing so would be extremely complex, including application of Central laws which were not previously applicable in J&K and a totally different system of administration for Ladakh.

Prudence would surely dictate that a step as monumental as this, which will have numerous complex consequences, should only be taken when the decision is beyond challenge.

That the judges were willing to discard this prudence does not look good for the the arguments against reorganisation. Without saying anything definitively, it may well be that this particular issue is a foregone conclusion, especially since, again, the very step of implementing the reorganisation grants it a kind of legitimacy.

National Security Getting Free Passes At Personal Liberty

When the Restrictions Cases were being given their brief airing in court, Justice BR Gavai observed, “There has to be a balance between personal liberty of a person and the national security.”

The comment was in the context of the previous Bench’s last order in the case, where they’d asked for the restoration of communication services, subject to national security.

Nobody is arguing that no measures can be taken by the government to ensure national security is not compromised. But when these affect the fundamental rights of people, the restriction must be limited to only what’s necessary, must be proportionate, and crucially, must be in accordance with a procedure established by law.

One of the key problems with Restrictions Cases and Detention Cases has been that we are not being shown that these checks and balances have in fact been adhered to. Forget the general public, even the court is not being provided with the details of how these checks and balances are satisfied.

Take for instance, the case of Farooq Abdullah’s detention since 4-5 August. Tamil Nadu politician Vaiko, a friend of Abdullah’s, filed a habeas corpus petition on his behalf on 11 September. The day before the petition was set to be heard, on 16 September, the authorities passed a preventive detention order against Abdullah under the Public Safety Act (PSA).

Because of this, the Supreme Court on Monday, 30 September, dismissed Vaiko’s petition, saying there was now a lawful basis for Abdullah’s detention. The problem is that the government had not produced any basis for Abdullah’s house arrest from the night of 4-5 August till 16 September, and now the legality of his detention during that time is no longer being looked into.

In fact, the government does not even seem to have formally submitted the detention order under the PSA against Abdullah to the apex court – how exactly did the Supreme Court dismiss the case if so?

A similar situation could very well have played out in Sitaram Yechury’s habeas corpus petition for MY Tarigami. The judges were on the verge of dismissing the case on the basis that Tarigami had in fact been brought to Delhi on the court’s order and so any subsequent detention needed to be challenged in the J&K High Court.

However, Yechury’s lawyer, senior advocate Raju Ramachandran, was able to show the judges that the court’s previous orders said it could still look into the basis for Tarigami’s original detention from 5 August onwards, so the case continues. Unfortunately, the judges did not seem inclined to hear the matter with any urgency.

Meaning that even if the detention turns out to be illegal, this will happen so far down the line that nobody will be paying attention – and in the meanwhile, the government gets to restrict Tarigami’s personal liberty for 57 days and counting, without having to bother coming up with any justification.

This approach is also affecting the Restrictions Cases. It took 57 days before the government finally explained how it was imposing the Internet and telecom shutdown in J&K: the counter-affidavit submitted by the government in the Anuradha Bhasin case says this is under Rule 2(1) of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

However, the story does not end here.

According to the counter-affidavit, the suspension orders were issued by the Inspector General of Police, Kashmir Zone, Srinagar, and then confirmed by the Principal Secretary of the Government of J&K. For the orders to be valid, it has to be seen if the Inspector General of Police had the authority to issue them. Then it has to be seen if the reasons for the orders were provided to an appropriate review committee within five days.

All these procedural requirements may well have been fulfilled, but these are things the court has to check when these measures are challenged.

At the very least, all the details should have been placed before the court long before 1 October – Anuradha Bhasin’s petition was registered in the court on 13 August, 48 days previously.

The delay in having this information placed before the court not only gives the government extra time to come up with additional justifications, but also means the required procedural scrutiny of these restrictions on personal liberty is not taking place on time.