Told by a lawyer that people in J&K cannot access the High Court there, CJI Gogoi called it a “serious matter” and sought a report from the HC.
By Ananthakrishnan G
The Supreme Court on Monday asked the Jammu and Kashmir administration to “ensure that normal life is restored in Kashmir… keeping in mind the national interest” though it saw “formidable reasons” behind the government move to impose restrictions over the revocation of the special status of the state under Article 370 of the Constitution.
Hearing a clutch of petitions, the bench of Chief Justice of India Ranjan Gogoi and Justices SA Bobde and S Abdul Nazeer allowed Congress leader Ghulam Nabi Azad to visit four districts in J&K after he gave an undertaking that he will not hold any rally or indulge in political activity during the visit. It also said CPM leader Mohd Yousuf Tarigami, who had been discharged from AIIMS in New Delhi, was free to return home.
Told by a lawyer that people in J&K cannot access the High Court there, CJI Gogoi called it a “serious matter” and sought a report from the HC. He said “if required, I will go personally and check… I will speak to the Chief Justice… if it’s not correct, be ready to bear the consequences”.
On returning normalcy in the state, the bench directed: “The State of Jammu & Kashmir, keeping in mind the national interest and internal security, shall make all endeavour to ensure that normal life is restored in Kashmir; people have access to healthcare facilities and schools, colleges and other educational institutions and public transport functions and operates normally. All forms of communication, subject to overriding consideration of national security, shall be normalised, if required on a selective basis, particularly for healthcare facilities.”
The bench asked the Centre and J&K administration to put in affidavits whatever they have to say, and also respond to petitions filed in the context of the situation post August 5 when the Centre announced its J&K move.
Appearing for the Centre and J&K, Attorney General K K Venugopal and Solicitor General Tushar Mehta referred to statistics on killings and terror attacks post 1990 — when Kashmiri Pandits were forced to flee the Valley — to justify the restrictions after the August 5 announcement. This made Justice Bobde note “these are formidable reasons… These are security matters”.
Venugopal said “during the last 70 years, the law and order situation in J&K has been extremely volatile on account of the violence orchestrated by terrorists being pushed from across the border as well as local militants. Since 1990, 41,866 persons have lost their lives in 71,038 incidents of terrorist violence. This includes 14,038 civilians, 5,292 personnel of security forces and 22,536 terrorists”. He said there was a “three-pronged attack on the administration prior to August 5”.
“Terrorists from across the border and local militants are encouraged by separatists and monies in huge amount being funded through hawala routes,” Venugopal said, adding that one of the kingpins, Zahoor Watali, had been arrested and the bail granted to him by Delhi High Court was cancelled by the Supreme Court in April 2019.
The SC judgment, he said, noted that there were allegations, including receipt of funds from the Pakistan High Commission, against him. The money, he said, was being channelled to separatists who in turn were paying stone-pelters. Mehta said “we are dealing with an unprecedented situation”.
Rejecting the charge that the local population was finding it difficult to even access hospitals, Mehta reeled out statistics of those who had availed medical facilities in Kashmir since August 5. He said 10.52 lakh patients attended OPDs in Kashmir hospitals up to September 15, while 67,196 patients visited indoor patient departments in various government-run healthcare institutions and doctors successfully performed 10,699 major surgeries including caesarean sections and 53,297 minor surgeries in various hospitals.
On why the restrictions became necessary, the government said when the decisions on Article 370 were taken on August 5, “it was clear that the persons who had been in power over long number of years in the state as well as the separatists whose very commanding position would be jeopardised… they would not hesitate to attempt to ensure that the law and order situation deteriorates… the restrictions are only temporary in character… we are approaching a stage when no such restrictions may be necessary”.
Mehta pointed out that as of September 15, prohibitory orders under Section 144 of Jammu and Kashmir CrPC have been removed in 93 out of 105 police stations in Kashmir division, all 90 police stations in Jammu division and all 7 police stations in Ladakh division.
Venugopal and Mehta were responding to submissions by advocate Vrinda Grover who appeared for petitioner Anuradha Bhasin, Executive Editor of the Kashmir Times newspaper. She contended that the daily had still not been able to publish from Srinagar and that life and communication continued to be crippled in Kashmir. At this, Venugopal said many other papers were being published from Srinagar. He also referred to a facilitation centre that the administration had opened for the media.
The bench, which also heard a writ of habeas corpus by CPM general secretary Sitaram Yechury, said his party colleague “Mohammad Yousuf Tarigami will be at liberty to move to Srinagar as and when he feels that his health condition would enable him to undertake the journey”. The bench had earlier directed that Tarigami be shifted to the AIIMS in New Delhi for better medical facilities. It asked the Centre to reply to Yechury’s plea that Tarigami’s detention from August 5 was without due authority.
On the plea by child rights activist Enakshi Ganguly and former National Commission for Child Rights Chairperson Shanta Sinha, who highlighted the condition of children in J&K as reported in the media and sought the court’s intervention, CJI Gogoi asked senior advocate H Ahmadi why he hadn’t moved the J&K High Court. Citing the lockdown, the counsel said this had made it difficult for people to access the court.
The CJI said it was a “serious matter. If people can’t approach HC, we will have to do something about it”. Asking the HC to file a report, the CJI observed that “if required, I will go personally and check”.
When the counsel said that it was on account of the shutdown in Kashmir, the CJI said “it’s a very, very serious issue… I will speak to the Chief Justice… if it’s not correct, be ready to bear the consequences”. Solicitor General Tushar Mehta said the submission did not appear to be correct.