Obliterating the Right to Personal Liberty: One Year of the Abrogation of Article 370
Written by: Tanya, Student, University Institute of Legal Studies, Panjab University, Chandigarh
“They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” ~Benjamin Franklin
On August 05, yesteryear, the President of India issued an edict titled as Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) which rendered Article 370 of the Constitution nugatory. With the abnegation of Article 370 which was symbolic of the sui generis history of accession to India of the erstwhile princely state of Kashmir and of the federal accommodation of Indian republic, the special status bestowed to the erstwhile state of Jammu and Kashmir was also countermanded. Besides, the former ‘state’ of J&K was demoted by bifurcating it into ‘union territories’ namely Jammu & Kashmir and Ladakh by putting in force the Jammu and Kashmir Reorganisation Act, 2019. Since then, there have been scads of debates and disputations revolving around the constitutionality of C.O. 272 and J&K Reorganisation Act. As the petition filed by advocate M.L. Sharma (Manohar Lal Sharma v. Union of India) seeking the defenestration of the said order and the legislation is pending in Supreme Court, these disputations are yet to be put to rest. But what is conspicuously beyond the letter and spirit of the constitution and thence, not the subject of any debate or discourse is the disproportionate restrictions imposed on the natives of Jammu & Kashmir in the wake of this machination.
A LAUNDRY LIST OF ENCUMBRANCES
In order to obviate any probable protests against the decision to rule out Article 370 and to transact it untrammelled, the government of India resorted to obtrude a slew of constraints in the region. The three popular leaders and former chief ministers of the erstwhile state of J&K namely Faaroq Abdullah, Omar Abdullah and Mehbooba Mufti as well as the other local politicians were put under house arrest. The entire region was posited under Section 144 of CrPC which imposed a moratorium on the assembly of five or more persons. All the movements of the public were suspended. Further, with the telephone and internet services down, the state-wide communications were also scrapped. Even the journalists and media persons were also not exempted from these unjustified constraints. On the whole, all integrants which jointly make for what is called ‘normalcy’ were suspended sine die in the region of Jammu and Kashmir on or around August 05, 2019. All these encumbrances fall foul of the fundamental freedoms of the citizens ranging from the freedom of speech and expression to freedom of movement as also the freedom to assemble and to carry out one’s occupation as enumerated in Article 19(1) of the constitution.
A SPECIAL CLOUT TO THE RIGHT TO PERSONAL LIBERTY
In addition to the aforementioned leaders, the legions of other individuals were also detained by the centrally-instructed administration of Jammu and Kashmir which served as severe clout to people’s fundamental right to personal liberty as enshrined under Article 21 of the Constitution. For that purpose, the administration availed the services of the warped legislations like Public Safety Act (PSA) and Unlawful Activities Prevention Act (UAPA) which allow the executive to incarcerate individuals based on its unilateral decision as to who poses a potential threat to the national security and imperils the law and order of the nation.
Perhaps, envisaging such infractions only, the founders of our constitution specially enabled the higher judiciary of the country to issue the writ of habeas corpus if and when any such infringement is brought under its cognizance. The judiciary is also obliged to act swiftly while dealing with the petitions of habeas corpus, for the procrastination may add to the distress of the victim. And it is utterly unfortunate that the judiciary, in this case, has completely failed in giving the administration a rap on the knuckles for its arbitrariness and in restoring victims’ fundamental right to personal liberty.
According to a report by The Indian Express, the Srinagar unit of the high court of Jammu and Kashmir was flooded with an enormous amount of 250+ habeas corpus petitions only in the seven weeks immediately after the scrapping down of Article 370. And the 61 per cent of the concerned petitions, dealt with by the High Court, were ‘dismissed’ or ‘settled’ on the basis of insufficient and unsatisfying arguments of the government. This has brought forth a clear image of the executive bias exercised by the judiciary while dealing with such cases. The research also claims that out of 160 petitions filed during August- December 2019, 42% were disposed of only in July 2020; 65% were disposed of during the months of March-July, 2020 and only 15% of these petitions were settled in 2019 itself. Also, as per the data available on the e-courts platform, at least 270 petitions of habeas corpus are yet waiting in the wings for their disposal. The data displays no speck of swiftness on the part of the judiciary and is clearly indicative of its laxity in handling the issue of such a great gravitas.
The fundamental rights enumerated in Part III of our grundnorm are the pièce de résistance of the Indian republic. Accessed after fighting a protracted battle with colonialism, these rights were considered to be sacred by the fathers of our constitution. Hence, they left no stone unturned in ensuring the unhindered availability of these rights to the citizens of India. Our constitution obliges the government to eschew the blasphemous conduct vis-à-vis the fundamental rights and empowers the judiciary to take immediate charge in case of the showcasing of such prohibited behaviour by the government. The judiciary also must understand that its fiasco in acting as a sentinel on qui vive does not only add to the agony of the victim but also disregards the authority of the constitution from which it derives its own authority and to which it is duty-bound to protect.
1) The (un)Constitutionality of CO 272: Article 370, The Times of India Blogs, https://timesofindia.indiatimes.com/blogs/the-democracy-project/the-unconstitutionality-of-co-272-article-370/
2) Article 370 (Manohar Lal Sharma v. Union of India), Supreme Court Observer,
3) Kashmir under lockdown: All the latest updates, Al Jazeera, https://www.aljazeera.com/news/2019/08/india-revokes-kashmir-special-status-latest-updates-190806134011673.html
4) The Indian Express, August 04, 2020, file:///C:/Users/Home/Downloads/5_6142994395214905694%20(1).pdf
The Absentee Constitutional Court, Gautam Bhatia, The Hindu, https://www.thehindu.com/opinion/lead/the-absentee-constitutional-court/article29394699.ece
Opinions expressed in the blogs are the sole responsibility of the author(s) and do not necessarily reflect the views of The L Word Blog.