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Illegal detentions in J&K

Kashmir Times. Dated: 8/4/2020 10:44:04 AM

Top Indian court should put tough questions to those who wield power before it dismisses an 83-year old citizen’s plea for freedom

The Supreme Court appears to have ignored the petitions of many citizens from Jammu and Kashmir, who challenged their detentions since August 5, 2019, and accepted the government’s contention that they have either not been detained or were not under any restrictions. It is sad state of affairs that most of the mainstream political leaders and activists were detained, after reading down of Article 370 of Indian Constitution and bifurcation of the state into two Union Territories, and their petitions have been pending before the SC or the J&K High Court without being heard. It is also unfortunate that the both the courts accepted the contentions of the J&K UT and refused to intervene in the matter. It is important that the SC judges could look at the photographs and the video footage, circulated by the electronic news channels and social media. They were taken on July 30, 2020, a day after the SC disposed of a petition by the J&K Congress leader and former union minister Saifuddin Soz’s wife challenging his ‘illegal detention’ and accepted the J&K government stand that there were no restrictions on his movement. The photographs and the video recording show that the 83-year old leader was being pulled down by the police officials at his residence when he was speaking to news reporters from behind the boundary wall, where barbed wire has been erected. It was not necessarily important to listen what he was saying across the boundary wall, the photographs and video tell an amply clear story and pose a question. Firstly, the question arises why did the J&K administration take the liberty with the facts presented in the court? Secondly, why did thew court accept the J&K administration’s contention for it? Finally, why did the SC accept the state’s definition of freedom when it is in clear conflict with that of the citizens? Unfortunately, the question of freedom of the citizens is become the order of the day. In many cases, particularly with reference to the detentions and freedom to say something, whether it is dissenting to the decisions of the BJP-led government at the Centre, involving fundamental liberties of the citizens and alleged transgression by the state, the court appear to give the government the benefit of doubt.
The first marker of this pattern came last year on October 1, when a five-judge Constitution bench refused to order stay and adjourned the hearing to November 4, a date which was beyond the scheduled implementation of the Centre’s order to bifurcate J&K into two UTs on October 31. This was the response of the SC while responding to petitions challenging the constitutional validity of the August 5, 2019 decision to abrogate Article 370 and special status of Jammu and Kashmir. The SC could give a serious thought to the entire process that was unfolding at that time. The pattern has continued through the Court’s treatment of habeas corpus petitions related to politicians, business leaders, lawyers and journalists, its lack of alacrity, its adjournments, effectively extended those detentions. In May this year, the SC order declining pleas for restoration of 4G internet services was disturbing not just for continuing the denial of such services but also because it seemed to cede its own powers of judicial review to a special committee headed by the Union home secretary, the very departments of the executive, whose orders were in question would adjudicate on the validity of the curbs on citizens’ freedoms imposed by them. Soz’s is a test case because there are many like him. Trapped in a zone between arrest and detention, unofficial and official, verbal and formal, at the mercy of the policeman at the gate. This is exactly the zone tailor-made for abuse, where the SC needs to focus and clear the air. These are the reasons for the SC, as the custodian of constitutionally mandated individual liberties, to ask more questions, of the administration that wields the power, before it decides to dismiss the plea of the family of an 83-year-old Indian citizen, who has been needing police permission to step out of his home since August 5 last year.