Dispensing justice to Kashmir in driblets

When a spate of petitions challenging the validity of various steps taken in Jammu and Kashmir after the Centre altered its constitutional status came up before the Supreme Court, it was reluctant to consider them immediately.

Ignoring the adage “Justice delayed is justice denied”, then Chief Justice Ranjan Gogoi said, “Let us give it (the government) a bit of time.”

The court routinely tells aggrieved citizens it cannot go by media reports. But Justice Gogoi cited newspaper reports that the curbs on land phones and broadband connections would go soon to justify his decision to go slow.

Justice SA Bode, who was to succeed him shortly as the CJI, said the Chief Justice of the J&K High Court had informed him that land phones were working.

It transpired later that the state was restoring phone connections but gradually and on a selective basis.

Sadly, the court, which in the past had held late-night hearings to render justice to individuals, showed no urgency in the Kashmir matter which affected a large chunk of the population. It soft-pedalled the issue evidently on considerations of security.

When the court took up Kashmir Times Executive Editor Anuradha Bhasin’s petition challenging the curbs on the media, Solicitor General Tushar Mehta, appearing for the J&K administration, asked it to throw it out as the matter involved security issues that were best left to the government and the armed forces.

However, the court kept the petition pending. Another bench heard it eventually and pronounced judgment last week.

In the court’s own words, it did a limited job of finding a balance between security on the one hand and freedoms and human rights on the other.

Security is certainly not a matter to be taken lightly. But the court overlooked the fact that the situation in Kashmir was precipitated not by any security threat posed by internal or external forces but by the Centre peremptorily taking away rights enjoyed by the people without any reference to them.

That issue is the subject of a large number of petitions which are still awaiting the court’s consideration.

Piecemeal handling of issues relating to Kashmir means justice will come in driblets.

In the judgment on Ms Bhasin’s petition, the court refrained from directing the authorities to withdraw all restrictions on freedoms immediately. Instead, it laid down certain basic rules relating to imposition of curbs and left it to the government to review all restrictive orders within a week.

It also asked the administration to publish all orders relating to restrictions in Kashmir valley so as to open them to judicial scrutiny.

It ruled that Internet services are integral to freedom of speech guaranteed by the Constitution and cannot be suspended indefinitely, and without stating reasons.

Last September, the Kerala High Court, which heard a petition by a woman student who was expelled from a college hostel for using a mobile phone, had said right to access the Internet was a fundamental right. The apex court decision endorses it.

Recognising the vital role information technology is playing in various fields, the court asked the J&K administration to restore Internet connections to institutions providing essential services like hospitals and schools and colleges.

The court said the state’s power under Section 144 of the Criminal Procedure Code (CrPC) to prohibit meetings and processions cannot be used to suppress dissent.

It ruled that orders under Section 144 must state reasons and they would be subject to judicial review.

Although the ruling has come in the Kashmir context, it has immediate relevance to all states, notably those under the control of the Bharatiya Janata Party, which use Sec 144 widely to foil protests against the Citizenship Amendment Act.

Justice NV Ramana, who delivered the judgment of the three-judge bench, was at pains to explain that the court had not delved into the political intent behind the orders under Sec 144 CrPC.

Officials who have the power to issue prohibitory orders are known to use it in accordance with the wishes of their political masters. The Constitution specifically mentions political justice. There is, therefore, no reason why the court should shy away from examining political motivation.

The moving force behind the wave of protests sweeping the country is a widely shared feeling of gross injustice.  The apex court can contribute best to the restoration of peace and security by dispensing justice speedily and completely.