Case BriefsSupreme Court

Supreme Court: A 3-judge bench of NV Ramana, R. Subhash Reddy and BR Gavai, JJ has constituted a three-member committee to look into demand for allowing 4G mobile internet in the union territory of Jammu and Kashmir. The order of the Court came in the plea seeking restoration of 4G internet services in Jammu and Kashmir claiming the 2G service available in the Union Territory is not sufficient for education and business purposes amid the ongoing coronavirus-induced lockdown.

Noticing that since the issues involved affect the State, and the nation, the Court was of the opinion that the Review Committee which consists of only State level officers, may not be in a position to satisfactorily address all the issues raised. It, hence, found it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir.

The Committee will consists of:

  • The Secretary, Ministry of Home Affairs (Home Secretary), Government of India. (Head of the Committee)
  • The Secretary, Department of Communications, Ministry of Communications, Government of India.
  • The Chief Secretary, Union Territory of Jammu and Kashmir.

The Committee will not only examine the contentions of, and the material placed by both the parties but also examine the appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over certain geographical areas and advise Centre regarding the same.

It is important to note that, internet services were suspended in J&K in August last year after the abrogation of Article 370 and bifurcation of the erstwhile state into two Union Territories of Ladakh and Jammu and Kashmir . While the 2G services on postpaid mobile phones and broadband have been restored, 4G services still remain suspended. While on one hand, the petitioners have argued that 4G speed was essential for healthcare, education, trade and business in the union territory during this hour of crisis due to coronavirus, the officials in Jammu and Kashmir, on the other hand, contended that restoration of 4G services could give rise to anti-national activities and militancy.

Attorney General KK Venugopal appearing for the Central government had earlier, told the Court that the orders that have been passed specifically stated that restrictions of internet speed are required for national security. Venugopal said that it’s about the protection of the lives of the entirety of the population of Jammu and Kashmir and not just the COVID-19 patients.

“Terrorists are being pushed into the country. Yesterday, there were some tragic events also. These men could easily take videos of the troop movements because they were trusted. The enemy could know the troop movements if they had 4G,”

The attorney general said that the petitions have to be examined against the larger public interest of national security, adding that national security is paramount and those tasked with protecting national security must be the sole judges in the matter.

“The matters of policy decision cannot be interfered with by the court. It must be left to the government,”

Lawyer Huzefa Ahmadi, appearing for one of the petitioners, told the court that the COVID-19 situation in J&K has worsened and added that problems are being faced by doctors who cannot access necessary information about coronavirus treatment due to the internet speed. 75 doctors have also made a representation flagging the same concerns.

Senior lawyer Salman Khurshid, appearing for another petitioner in the matter, said that private schools are under government directions to provide education
via video-conferencing.

“We have an obligation under the Right to Education to provide education”

Solicitor General Tushar Mehta said that the Central government had started with a complete lockdown and then brought in relaxations by allowing movement, followed by landline and then 2G internet services.

Taking note of all the arguments, the Court said that while it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored. However, considering that the authorities in the Union Territories of Jammu and Kashmir have selected the 2G speed to restrict the flow of information in order to prevent misuse of data by terrorists and their supporters to disturb the peace and tranquility of the Union Territory of Jammu and Kashmir, the Court, however, said,

“we do recognize that the Union Territory of Jammu and Kashmir has been plagued with militancy, which is required to be taken into consideration.”

The Court, hence, highlighted the observations made by it’s January order in Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25, wherein it has said that for meaningful enforcement of the spirit of the judgment, inter alia, the authorities are required to pass orders with respect to only those areas, where there is absolute necessity of such restrictions to be imposed, after satisfying the directions passed earlier.

Though the Court agreed to it’s observation in Anuradha Bhasin judgment that the internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies, it was also cognizant of the concerns relating to the ongoing pandemic and the hardships that may be faced by the citizens and that it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown.

Terming the issue of restoration of 4G internet service in the valley as “a very important but a sensitive issue on national security and human rights”, the Court asked the Committee to take a balanced decision, keeping both aspects in mind.

[Foundations for Media Professionals v. Union Territory of Jammu and Kashmir, 2020 SCC OnLine SC 453, decided on 11.05.2020]


Also read:

Article 370| Review all orders imposing curbs in a week and put them in public domain: SC to J&K administration [Anuradha Bhasin judgment]

Hot Off The PressNews

Supreme Court: The Court has reserved its order on a batch of petitions seeking restoration of 4G internet services in Jammu and Kashmir claiming the 2G service available in the Union Territory is not sufficient for education and business purposes amid the ongoing coronavirus-induced lockdown.
A three-judge bench headed by Justice NV Ramana said that it is taking into consideration all the issues in the matter and that it does not require any additional material in the case and said,

“We will pass appropriate orders in the case,”

During the hearing, attorney general KK Venugopal appearing for the Central government said that the orders that have been passed specifically stated that restrictions of internet speed are required for national security. Venugopal said that it’s about the protection of the lives of the entirety of the population of Jammu and Kashmir and not just the COVID-19 patients.

“Terrorists are being pushed into the country. Yesterday, there were some tragic events also. These men could easily take videos of the troop movements because they were trusted. The enemy could know the troop movements if they had 4G,”

The attorney general said that the petitions have to be examined against the larger public interest of national security, adding that national security is paramount and those tasked with protecting national security must be the sole judges in the matter.

“The matters of policy decision cannot be interfered with by the court. It must be left to the government,”

Lawyer Huzefa Ahmadi, appearing for one of the petitioners, told the court that the COVID-19 situation in J&K has worsened and added that problems are being faced by doctors who cannot access necessary information about coronavirus treatment due to the internet speed. 75 doctors have also made a representation flagging the same concerns.

Justice Ramana said that the government is saying the people can rely on the landline broadband connection, to which Ahmadi responded by saying
broadband connections account for less than one percent of the total internet connections in J&K.

“There are around approximately 1 lakh 32 thousand broadband landline connections in J&K, but more than one crore phone/internet connections. The total number of broadband connections in J&K account for less than 1 percent of the total internet connections,”

Justice BR Gavai said,

the numbers are not in dispute but it’s a legal question of balance and the government is raising security concerns.

Justice Ramana said that the Central government is claiming that there has been a surge in terrorist activities and they have collaborated via 4G. Ahmadi
responded by saying that the terrorist activities were more in the 1990s when there was no internet at all.

Ahmadi submitted that the Centre is arguing that the national security may be compromised, but they have not been able to show any direct nexus in the case.

“Let them open internet speeds for a week and see if there is any nexus with terrorism.”

Senior lawyer Salman Khurshid, appearing for another petitioner in the matter, said that private schools are under government directions to provide education
via video-conferencing.

“We have an obligation under the Right to Education to provide education”

Solicitor General Tushar Mehta said that the Central government had started with a complete lockdown and then brought in relaxations by allowing movement, followed by landline and then 2G internet services.

Notably, internet services were suspended in J&K in August last year after the abrogation of Article 370 and bifurcation of the erstwhile state into two Union
Territories of Ladakh and Jammu and Kashmir . While the 2G services on postpaid mobile phones and broadband have been restored, 4G services still remain suspended.

(Source: ANI)

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge Constitution bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ has refused to refer the petitions challenging the constitutional validity of the Centre’s move to abrogate Article 370 to a larger bench.

The Court was hearing the limited issue regarding the reference being made to a larger bench in the light of the fact that in the case of Prem Nath Kaul v State of Jammu and Kashmir, after considering the various issues, held that Article 370 was temporary in nature, however, the subsequent judgment of Sampat Prakash v. State of Jammu and Kashmir, reversed the aforesaid position, recognizing Article 370 as a permanent provision giving perennial power to the President to regulate the relationship between the Union and the State.

Holding that there is no conflict between the judgments in the Prem Nath Kaul case and the Sampat Prakash case, the bench said that judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning. It noted,

“the Constitution Bench in the Prem Nath Kaul case did not discuss the continuation or cessation of the operation of Article 370 of the Constitution after the dissolution of the Constituent Assembly of the State. This was not an issue in question before the Court, unlike in the Sampat Prakash case where the contention was specifically made before, and refuted by, the Court. This Court sees no reason to read into the Prem Nath Kaul case an interpretation which results in it being in conflict with the subsequent judgments of this Court, particularly when an ordinary reading of the judgment does not result in such an interpretation.”

The bench, further, explained that the Court, in the Prem Nath Kaul case, had to determine the legislative competence of the Yuvaraj, in passing a particular enactment. The enactment was passed during the interregnum period, before the formulation of the Constitution of State of Jammu and Kashmir, but after coming into force of the Constitution of India. The observations made by the Constitution Bench in this case, regarding the importance given to the decision of the Constituent Assembly of the State of Jammu and Kashmir needs to be read in the light of these facts.

“the framework of Article 370(2) of the Indian Constitution was such that any decision taken by the State Government, which was not an elected body but the Maharaja of the State acting on the advice of the Council of Ministers which was in office by virtue of the Maharaja’s proclamation dated March 5, 1948, prior to the sitting of the Constituent Assembly of the State, would have to be placed before the Constituent Assembly, for its decision.”

Explaining the rationale behind such framework, the Court said that as the task of the Constituent Assembly was to further clarify the scope and ambit of the constitutional relationship between the Union of India and the State of Jammu and Kashmir, on which the State Government as defined under Article 370 might have already taken some decisions, before the convening of the Constituent Assembly, which the Constituent Assembly in its wisdom, might ultimately not agree with.

“Hence, the Court in the case of Prem Nath Kaul (supra) indicated that the Constituent Assembly’s decision under Article 370(2) was final. This finality has to be read as being limited to those decisions taken by the State Government under Article 370 prior to the convening of the Constituent Assembly  of the State, in line with the language of Article 370(2).”

The Court, hence, held that there are no contrary observations made in the Sampat Prakash case to that of Prem Nath Kaul Case, accordingly, the case of Sampat Prakash Case is not per incuriam.

Evolution of Article 370

  • Under the draft Constitution, Article 370 of the Constitution was draft Article 306A, which was introduced in the Constituent Assembly on 17.10.1947.
  • Constitution Order 44 was promulgated under Article 370(3) of the Constitution, modifying Article 370 of the Constitution by amending the Explanation in Clause 1 of Article 370.
  • the President in exercise of the power conferred upon him by clause (1) of Article 370 of the Constitution, with the concurrence of the Government of the State of Jammu and Kashmir, issued the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1965, which further brought about change through amendment to Article 367 as applicable to the State of Jammu and Kashmir.
  • On August 5, 2019, two Constitution Orders were issued by the President in exercise of his power under Article 370. These Constitution Orders made the Constitution of India applicable to the State of Jammu and Kashmir in its entirety, like other States in India.

[Dr. Shah Faesal v. Union of India, 2020 SCC OnLine SC 263, decided on 02.03.2020]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Arun Mishra, Vineet Saran and MR Shah, JJ has issued a notice to the Jammu and Kashmir administration seeking its response on a plea filed by Iltija, daughter of former chief minister Mehbooba Mufti, challenging her mother’s detention under the Jammu and Kashmir Public Safety Act, 1978. The bench also asked Iltija to file an affidavit that no similar case is pending before any other court and posted the matter for hearing to March 18.

During the hearing, senior advocate Nitya Ramakrishna appearing for Iltija assured the court that no petition is pending before any court. The court also asked the counsel about the situation in the Kashmir.

“What’s the position now? Schools have started? It came in the newspaper,”

At the outset, the bench even suggested the counsel to approach Jammu and Kashmir High Court. Senior counsel responded that High Court had taken a view that it can’t go into
the administrative issues, to which the bench replied that it’s not an administrative issue. “Cheap politics among masses,” counsel argued while reading out reasons for Mufti’s detention. The counsel also said that they (administration) have not referred to a single instance against former Chief Minister of inciting people.

The Jammu and Kashmir administration had, on February 5, invoked PSA against the former Chief Ministers Mehbooba Mufti and Omar Abdullah. Both the former Chief Ministers were detained after the government abrogated Article 370 last year. Earlier, the bench had also sought response from Jammu and Kashmir administration on a plea of former Jammu and Kashmir Chief Minister Omar Abdullah’s sister challenging his detention under the Jammu and Kashmir Public Safety Act.

(Source: ANI)

Hot Off The PressNews

Supreme Court: A bench headed by Justice Arun Mishra has issued a notice to the Jammu and Kashmir administration on the plea of National Conference leader Omar Abdullah’s sister challenging his detention under the Jammu and Kashmir Public Safety Act, 1978. The Jammu and Kashmir administration has to file a reply by March 2. Justice Mohan Shantanagoudar on Wednesday had recused from hearing the plea.

The Court inquired whether any similar plea filed by any person is pending before the High Court. On this, senior lawyer Kapil Sibal, who is appearing for Omar’s sister Sara Abdullah Pilot, said “no”.

In her plea, Sara Abdullah Pilot, Omar’s sister and wife of Rajasthan Deputy Chief Minister Sachin Pilot, said the order of detention is manifestly illegal and there is no question of him being a “threat to the maintenance of public order”. She also said that exercise of powers by authorities under the CrPC to detain individuals, including political leaders, was “clearly mala fide” to ensure that the opposition to the abrogation of Article 370 of the Constitution is “silenced”.

The plea has sought quashing of the February 5 order detaining Omar Abdullah under the PSA and also sought his production before the court.

“The intent of exercise of power was to incarcerate not just him but the entire leadership of the National Conference, as well as the leadership of other political parties, who were similarly dealt with including Farooq Abdullah, who has served the State and the Union over several years… stood by India whenever the situation so demanded,”

The plea added that the grounds for the detention order are wholly lacking any material facts or particulars which are imperative for an order of detention. The Jammu and Kashmir administration on February 5 had invoked the stringent PSA against former Chief Minister Abdullah and People’s Democratic Party leader Mehbooba Mufti. Both the former Chief Ministers were detained after the government abrogated Article 370 last year.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

(Source: ANI)

Hot Off The PressNews

Supreme Court: Justice Mohan Shantanagoudar on Wednesday has recused from hearing the plea of former Jammu and Kashmir Chief Minister Omar Abdullah’s sister, challenging his detention under the Jammu and Kashmir Public Safety Act, 1978. A three-judge Bench of Justice NV Ramana, Justice Mohan Shantanagoudar and Justice Sanjiv Khanna was scheduled to hear the case today after the matter was mentioned before the Court on Monday.

Another Bench has agreed to hear the case tomorrow. Senior advocate Kapil Sibal, appearing for Sara, mentioned that he will not be available for the hearing on Thursday. Thus, the top court scheduled the matter for hearing on Friday i.e. February 14, 2020.

In her plea, Sara Abdullah Pilot, Omar’s sister and wife of Rajasthan Deputy Chief Minister Sachin Pilot, said the order of detention is manifestly illegal and there is no question of him being a “threat to the maintenance of public order”. She also said that exercise of powers by authorities under the CrPC to detain individuals, including political leaders, was “clearly mala fide” to ensure that the opposition to the abrogation of Article 370 of the Constitution is “silenced”.

The plea has sought quashing of the February 5 order detaining Omar Abdullah under the PSA and also sought his production before the court.

“The intent of exercise of power was to incarcerate not just him but the entire leadership of the National Conference, as well as the leadership of other political parties, who were similarly dealt with including Farooq Abdullah, who has served the State and the Union over several years… stood by India whenever the situation so demanded,”

The plea added that the grounds for the detention order are wholly lacking any material facts or particulars which are imperative for an order of detention. The Jammu and Kashmir administration on February 5 had invoked the stringent PSA against former Chief Minister Abdullah and People’s Democratic Party leader Mehbooba Mufti. Both the former Chief Ministers were detained after the government abrogated Article 370 last year.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

(Source: ANI)

Hot Off The PressNews

Supreme Court: A petition has been filed in the Supreme Court challenging the detention of former Jammu and Kashmir Chief Minister Omar Abdullah, under the Public Safety Act (PSA). The plea was filed by Abdullah’s sister Sara Abdullah Pilot.

Abdullah and People’s Democratic Party (PDP) leader Mehbooba Mufti were recently booked under PSA. Both the former Jammu and Kashmir chief ministers were detained after the government abrogated Article 370 last year.

On the intervening night of 4 and 5 August 2019, Omar Abdullah was placed under preventive detention by the Indian Government. This came as a backdrop to the government’s decision of scrapping Article 370 of the Constitution of India, which gave the state of Jammu & Kashmir semi-autonomous powers. On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

(Source: ANI)

Case BriefsSupreme Court

“While the mountains of Himalayas spell tranquillity, yet blood is shed every day.”

Supreme Court: In a major verdict, the 3-judge bench of NV Ramana, R Subhash Reddy and BR Gavai, JJ has asked J&K administration to review all orders imposing curbs on telecom and internet services in the state in a week and put them in public domain.

“The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).”

Stating that it’s limited scope, in the matter wherein the two sides have shown two different pictures which are diametrically opposite and factually irreconcilable, was to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner, the Court said,

“It is not our forte to answer whether it is better to be free than secure or be secure rather than free. However, we are here only to ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time.”

Fundamental rights under part III and restrictions thereof

  • Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.
  • Internet is also a very important tool for trade and commerce. Such a right of trade through internet also fosters consumerism and availability of choice. Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).

Right to access internet as a fundamental right

The Court refused to offer views on the said issue as none of the counsels had argued for declaring the right to access the internet as a fundamental right.

Publication of orders on Internet shut down

The Court noticed that although the Suspension Rules under Section 7 of the Telegraph Act does not provide for publication or notification of the orders, a settled principle of law, and of natural   justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available.

“Any law which demands compliance of the people requires to be notified directly and reliably. This is the case regardless of whether the parent statute or rule prescribes the same or not.

It further added that complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy.

Restrictions under Section 144 CrPC

“As emergency does not shield the actions of Government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always.”

Explaining the concepts of ‘law and order’, ‘public order’ and ‘security of State’, the Court said that these are distinct legal standards and that the Magistrate must tailor the restrictions depending on the nature of the situation. The Magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstances; the restrictions must be proportionate to the situation concerned.

“If two families quarrel over irrigation water, it might breach law and order, but in a situation where two communities fight over the same, the situation might transcend into a public order situation. However, it has to be noted that a similar approach cannot be taken to remedy the aforesaid two   distinct situations.”

Freedom of press

When Anuradha Bhasin argued before the Court that she was not able to publish her newspaper Kashmir Times from 06­08­2019 to 11­10­2019, the Court noticed that no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area.

“Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self­serving purpose.”

The Court, however, said that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely.

Operative order

  1. The J&K State/competent authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum.
  2. Freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.
  3. An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.
  4. Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein.
  5. The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6). Hence, J&K State/competent authorities must review all orders suspending internet services forthwith.
  6. Orders not in accordance with the law laid down above, must be revoked. Further, in future, if there is a necessity to pass fresh orders, the law laid down herein must be followed.
  7. In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e­banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.
  8. The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. Hence, the power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
  9. An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order.
  10. While exercising the power under Section 144, Cr.P.C., the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure.
  11. Repetitive orders under Section 144, Cr.P.C. would be an abuse of power.
  12. The J&K State/competent authorities are directed to review forthwith the need for continuance of any existing orders passed under Section 144, Cr.P.C in accordance with law laid down above.

The 3-judge bench had reserved the judgment on November 27, 2019 on a batch of pleas including that of Congress leader Ghulam Nabi Azad challenging the restriction imposed in the erstwhile state of Jammu and Kashmir following abrogation of provisions of Article 370.

The bench heard the petitions filed by various petitioners including Congress leader Ghulam Nabi Azad, Kashmir Times editor Anuradha Bhasin and others. The petitions were filed after the central government scrapped Article 370 in August and bifurcated Jammu and Kashmir into two UTs — Jammu and Kashmir and Ladakh earlier. Following this, phone lines and the internet were blocked in the region.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

[Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25, decided on 10.01.2020]

Hot Off The PressNews

Supreme Court: The 3-judge bench of N V Ramana, R Subhash Reddy, and B R Gavai, JJ has reserved the judgment on a batch of pleas including that of Congress leader Ghulam Nabi Azad challenging the restriction imposed in the erstwhile state of Jammu and Kashmir following abrogation of provisions of Article 370.

The bench heard the petitions filed by various petitioners including Congress leader Ghulam Nabi Azad, Kashmir Times editor Anuradha Bhasin and others. The petitions were filed after the central government scrapped Article 370 in August and bifurcated Jammu and Kashmir into two UTs — Jammu and Kashmir and Ladakh earlier. Following this, phone lines and the internet were blocked in the region.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir) with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

(Source: ANI)

Hot Off The PressNews

Supreme Court: The Court has sought Centre’s response on a PIL seeking direction from the Government to immediately restore high-speed internet  services and fixed landline phone services across all hospitals and medical establishments in Jammu and Kashmir. A bench headed by Chief Justice Ranjan Gogoi issued a notice to the Centre and tagged the matter along with other related pleas in connection with the Kashmir issue.

On September 11, an advocate named Satya Mitra had filed the plea on behalf of doctor Sameer Kaul and one Salim Jahangeer Kirmani. The petition also sought direction to the central government to desist and refrain in future from blocking or suspending internet and fixed landline phone services in hospitals and medical establishments, along with mobile phone services of doctors and other staff members working in hospitals and medical establishments in Jammu and Kashmir.

The court sent to constitution bench a plea filed by Kashmir Times Executive Editor Anuradha Bhasin seeking the removal of communication blockade in Jammu and Kashmir after the abrogation of provisions under Article 370 and free movement of journalists in the region.

On August 13, Bhasin had moved the plea, claiming Kashmir Times was not published owing to the curbs on communication services and movement. She had alleged that a bar was put on journalists’ rights provided under the different provisions of the Constitution.
The court also sent to constitution bench a PIL filed by child rights expert Enakshi Ganguly and Professor Shanta Sinha, alleging illegal detention of children in Jammu and Kashmir in the wake of abrogation of Article 370.

The court will commence hearing on the pleas relating to Article 370 from Tuesday.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir) with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the
move.

(Source: ANI)


More from Supreme Court on Article 370

SC seeks report from J&K HC CJ on claims about people being unable to approach HC

SC asks Central govt to restore normalcy in Jammu & Kashmir

5-judge bench to begin hearing in plea challenging J&K Reorganisation Bill from tomorrow

Won’t rush into passing any direction on removal of restrictions on the media in J&K: SC

No urgent hearing on plea challenging J&K Reorganisation Bill

Also read

Parliament passes the J&K Reorganisation Bill, 2019!

The Jammu and Kashmir Reservation (Amendment) Bill, 2019– What it says?

Rajya Sabha approves the Jammu and Kashmir Reservation (Second Amendment) Bill, 2019!

Jammu and Kashmir Reorganisation (Amendment) Bill, 2019 — Passed by Rajya Sabha; Formation of J&K as a Union Territory!

Hot Off The PressNews

Supreme Court: A 5-judge bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ will begin hearing the plea challenging the abrogation of Article 370 of the Constitution from tomorrow.

Advocate Manohar Lal Sharma had moved the Court seeking quashing of the Union Of India’s Gazette notification of August 5, 2019 for amending Article 367 of the Constitution pertaining to Presidential order on Article 370. Sharma, in his petition, claimed that the gazette notification was “illegal” and “unconstitutional”.

Earlier, the bench of NV Ramana and Ajay Rastogi, JJ had refused to give urgent hearing to the plea challenging the abrogation of Article 370 of the Constitution.

Sharma had mentioned the matter before the bench and said it may be raised by Pakistan in the United Nations. On this Justice Ramana had said,

“What are you saying? Can UN stay our amendments?”

On August 5, 2019, the Central Government had abrogated the Articles 370 and 35A of the Constitution of India and the Parliament had passed the Jammu and Kashmir (Reorganization) Act, 2019, bifurcating the state into two Union Territories – Jammu and Kashmir with legislature and Ladakh without one.


Also read:

Parliament passes the J&K Reorganisation Bill, 2019!

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Supreme Court: Terming as “very very serious” the claim that people are finding it difficult to approach the Jammu and Kashmir High Court, the 3-judge bench of bench of Ranjan Gogoi, CJ and S A Bobde and S A Nazeer, JJ has decided to verify it by asking the Chief Justice there to “forthwith” submit a report in this regard.

“If you are saying so, we are bound to take serious note of it. Tell us why it is very difficult for people to approach the high court. Is anybody stopping the people from going to high court? Then it is a very very serious issue,”

The Court said that it will verify the claim after senior advocate Huzefa Ahmadi appearing for two child rights activists claimed that it is very difficult for the people in the state to access the high court there.

The CJI said he would himself visit Srinagar, if required, and he would also speak to the chief justice of high court about this.

“It is stated by Huzefa Ahmadi, senior counsel for the petitioners, that access to the high court of Jammu and Kashmir is seriously affected by the present situation in the state. We request the chief justice of the high court to submit a report on the above issue forthwith,”

Taking note of Ahmadi’s submissions, the CJI said, “You are saying that you cannot go to the high court. We have called for a report from Chief Justice of the high court. If required, I will myself go there.” He further said:

“We must know if there is denial of access to justice. I will personally talk to the chief justice of the high court after this matter is over because what you have said is very very serious thing.”

The bench warned however that if the allegations are found to be incorrect then the petitioners should be ready to face the consequences.

The Court was considering a public interest litigation (PIL) seeking the Supreme Court’s intervention on the issue of detention of children in Kashmir. During the hearing, the bench referred to the prayer made in the petition and said that petitioners have themselves said that children be produced before the juvenile justice committee of the high court. Ahmadi, however, said it is very difficult to approach the high court in the state.

Solicitor General Tushar Mehta, appearing for Jammu and Kashmir, told the bench that all the courts in the state are functioning and even the Lok Adalats have been conducted there. When Mehta said that he wanted to make statement in the court on the issue, the bench said,

“We do not want anybody to make any statement. We will look into it. If people are not able to approach the high court, then we will have to look into it.”

The petition has been filed by child rights activists Enakshi Ganguly and Professor Shanta Sinha against the alleged illegal detention of children in Jammu and Kashmir in the wake of revocation of Article 370 and bifurcation of state. The plea has contended that all persons below the age of 18 years who have been detained be identified through an age census. Seeking directions that illegally detained children be produced before the Juvenile Justice Committee of the high court, the plea has also sought compensation from them.

Last month, Parliament had passed the Jammu and Kashmir (Reorganization) Act, 2019, bifurcating the state into two Union Territories — Jammu and Kashmir with legislature and Ladakh without it. Following this, a batch of petitions were filed in the top court challenging it.

(Source: PTI)


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Supreme Court: The Court has asked the Central and Jammu and Kashmir Government to file an affidavit on the petitions challenging the abrogation of the provisions under Article 370. A three-judge bench headed by Ranjan Gogoi has also asked the Centre and State to
restore the normalcy in Jammu and Kashmir by keeping in mind the “national safety” and “security.

The mobile facilities, including Internet, were suspended in the Kashmir region after the abrogation of Article 370, last month.

The Court was hearing a batch of petitions, including one filed by the Kashmir Times Executive Editor Anuradha Bhasin, challenging the communication blockade in Jammu and Kashmir. While Vrinda Grover appeared on behalf of Bhasin, Attorney General (AG) KK Venugopal represented the Central government in the Court. During the course of proceedings, Grover contended that the communication blockade is a “hindrance to the media activities” and sought a direction to restore all kinds of communication activities for a smoother work for media.

Opposing the submission made by the counsel, AG told the court that the landline and many other communication facilities have been provided to media professionals for their work.

“Newspapers are getting published and TVs are also broadcasting,”

On the matter of the health services, he said that more than 5.5 lakh people have, by far, received the medical treatment and refuted the claim put forth by Bhasin that people are not getting medical facilities in Jammu and Kashmir. AG added,

“Major surgeries, including major ones like cesarean and other operations, are being conducted normally in Jammu and Kashmir,”

He also said that not a single person has died since the revocation of Jammu and Kashmir’s special constitutional status.

The Court also sought a response from the Centre and Jammu and Kashmir administration on the habeas corpus petition moved by MDMK chief, Vaiko, seeking the release of former Jammu and Kashmir chief minister Farooq Abdullah, who has been under the preventive detention in Srinagar after the central government revoked the special Constitutional status accorded to Jammu and Kashmir.

The Court also allowed senior Congress leader and former Jammu and Kashmir Chief Minister, Ghulam Nabi Azad, to visit Srinagar, Baramulla, Anantnag and Jammu. CJI, however, directed,

“He will not make any speeches or hold any public rally as per his own submissions.”

CJI further stated, “If requirement arises, I may visit Jammu and Kashmir.”

The court will now take up the matter on September 30.

Last month, Parliament had passed the Jammu and Kashmir (Reorganization) Act, 2019, bifurcating the state into two Union Territories — Jammu and Kashmir with legislature and Ladakh without it. Following this, a batch of petitions were filed in the top court challenging it.


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Supreme Court: The batch of petitions challenging the changes brought in the constitutional status of Jammu and Kashmir by abrogating Article 370 has been referred to a five-judge Constitution bench. The issued notices to the Centre and the Jammu and Kashmir administration.

The 3-judge bench of Ranjan Gogoi, CJ and SA Bobde and SA Nazeer, JJ was not in agreement with the Centre that there was no need for issuance of notice in the matter as Attorney General K K Venugopal and Solicitor General Tushar Mehta were marking their presence in the court. Refusing to accept the argument that the issuance of notice would have a “cross-border repercussion”, the bench said,

“We will refer the matter to a five-judge Constitution bench,”

The attorney general said whatever was being said by the court was sent before the United Nations (UN).

As the counsel appearing for both sides were involved in arguments and counter-arguments, the bench said,

“We know what to do, we have passed the order, we are not going to change.”

The matter would be listed for hearing in the first week of October.

The first petition challenging the presidential order scrapping Article 370 was filed by advocate M L Sharma, who was later joined by another lawyer from Jammu and Kashmir, Shakir Shabir.

National Conference (NC), a prominent political party from Jammu and Kashmir, filed a petition on August 10, contending that the changes brought in the status of the state had taken away the rights of its citizens without their mandate. Arguing that the legislation approved by Parliament and the orders issued by the President subsequently were “unconstitutional”, the petition prayed for those to be declared as “void and inoperative”. The petition was filed by Mohammad AKbar Lone and Justice (retd) Hasnain Masoodi, both Lok Sabha members of the NC. Lone is a former speaker of the Jammu and Kashmir Assembly and Masoodi is a retired judge of the Jammu and Kashmir High Court, who ruled in 2015 that Article 370 was a permanent feature of the Constitution.

There are other petitions challenging the Centre’s decision to abrogate Article 370, including a plea filed by a group of former defence officers and bureaucrats, who have sought directions declaring the presidential orders of August 5 as “unconstitutional, void and inoperative”.

The plea was filed by professor Radha Kumar, a former member of the Home Ministry’s Group of Interlocutors for Jammu and Kashmir (2010-11), former IAS officer of Jammu and Kashmir cadre Hindal Haidar Tyabji, Air Vice Marshal (retd) Kapil Kak, Major General (retd) Ashok Kumar Mehta, former Punjab-cadre IAS officer Amitabha Pande and former Kerala-cadre IAS officer Gopal Pillai, who retired as the Union home secretary in 2011.

A petition has also been filed by bureaucrat-turned-politician Shah Faesal, along with his party colleague and former Jawaharlal Nehru University Students’ Union (JNUSU) leader Shehla Rashid.

There are other petitions challenging the Centre’s decision on Article 370.

(Source: PTI)


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Hot Off The PressNews

Supreme Court:  After the Centre submitted before the Court that the situation is improving in Jammu and Kashmir and the curbs are being lifted gradually, the Court said it will wait for sometime before passing any direction on the plea seeking removal of restrictions on the media in Jammu and Kashmir.

The 3-judge bench of Ranjan Gogoi, CJ and SA Bobde and SA Nazeer, JJ said,

“We would like to give little time. We have read in newspaper today that landline and broadband connections are being restored gradually.Therefore, we will take up the petition with other connected matters.”

Advocate Vrinda Grover, appearing for Anuradha Bhasin, Executive Editor, Kashmir Times, said there was a need for early restoration of communication mode for journalists to carry out their work. She had submitted that her matter was related to freedom of press.

Noticing that the landlines are working in the State as it had got a call from the CJ of J-K HC, the Court said,

“We will see when the matter can be listed for hearing. We will fix a date on the administrative side.”

Another bench, headed by Justice Arun Mishra, on Tuesday had refused to interfere with the Centre and Jammu and Kashmir government imposing several restrictions, saying “reasonable time” be given for bringing normalcy in the sensitive situation and had decided to hear the issue after two weeks.

(Source: PTI)


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Hot Off The PressNews

Supreme Court: The bench of NV Ramana and Ajay Rastogi, JJ has refused to give urgent hearing to the plea challenging the abrogation of Article 370 of the Constitution.

Advocate Manohar Lal Sharma, who had filed the plea before the Supreme Court, had mentioned the matter before the bench and said it may be raised by Pakistan in the United Nations. On this Justice Ramana said,

“What are you saying? Can UN stay our amendments?”

Sharma had moved the Court seeking quashing of the Union Of India’s Gazette notification of August 5, 2019 for amending Article 367 of the Constitution pertaining to Presidential order on Article 370. The court asked Sharma to mention his matter before the appropriate bench–the CJI bench–which would pass appropriate orders on his petition. Sharma, in his petition, claimed that the gazette notification was “illegal” and “unconstitutional”.

In another plea filed by activist Tehseen Poonawalla, the Court again refused urgent hearing on a petition seeking withdrawal of curfew, blocking of phone lines, Internet, news channels and other restrictions in Jammu and Kashmir. The plea also sought an immediate release of political leaders from the illegal custody in Jammu and Kashmir. The Court said that the matter would be placed before Chief Justice Ranjan Gogoi for listing.

(Source: ANI)


Also read:

Parliament passes the J&K Reorganisation Bill, 2019!

The Jammu and Kashmir Reservation (Amendment) Bill, 2019– What it says?

Rajya Sabha approves the Jammu and Kashmir Reservation (Second Amendment) Bill, 2019!

Jammu and Kashmir Reorganisation (Amendment) Bill, 2019 — Passed by Rajya Sabha; Formation of J&K as a Union Territory!

Amendments to existing lawsLegislation Updates

G.S.R. 562(E)— The following Declaration made by the President is notified for general information:—

DECLARATION UNDER ARTICLE 370(3) OF THE CONSTITUTION

“C.O. 273”

In exercise of the powers conferred by clause (3) of Article 370 read with clause (1) of Article 370 of the Constitution of India, the President, on the recommendation of Parliament, is pleased to declare that, as from the 6th August, 2019, all clauses of the said Article 370 shall cease to be operative except the following which shall read as under, namely :—

“370. All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in Article 152 or Article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 363 or otherwise.”

*Please follow the link for the official notification: NOTIFICATION


Ministry of Law and Justice

Legislation UpdatesStatutes/Bills/Ordinances

The Union Cabinet, chaired by the Prime Minister Narendra Modi has approved the proposal of Jammu & Kashmir Government regarding an amendment to the Constitution (Application to Jammu & Kashmir) 0rder, 1954 by way of the Constitution (Application to Jammu & Kashmir) Amendment Order, 2019. It will serve the purpose of application of relevant provisions of the Constitution of India, as amended through the Constitution (Seventy-Seventh Amendment) Act, 1995 and Constitution (One Hundred arid third Amendment) Act, 2019 for Jammu and Kashmir, by issuing the Constitution (Application to Jammu and Kashmir) Amendment Order, 2019 by the President under clause (1) of Article 370.

Impact:

Once notified, this will pave the way for giving the benefit of promotion in service to the Scheduled Castes, the Scheduled Tribes and also extend the reservation of up to 10% for “economically weaker sections” in educational institutions and public employment in addition to the existing reservation in Jammu and Kashmir.

Background : Equity & Inclusiveness

  • 10% reservation for economically weaker sections made applicable in J&K also. This would pave the way for reserving State Government jobs to the youth of J&K who are from economically weaker sections belonging to any religion or caste. It may be recalled that 10% reservation to economically weaker sections was introduced in rest of the country through the 103rd Constitution Amendment in January 2019. This will be in addition to such reservation available in Govt. of India jobs also.
  • Benefit of promotion to Scheduled Castes and Scheduled Tribes, which include Gujjars and Bakarwals amongst others, has also been made applicable to the State of J&K. After a long wait of 24 years, the 77th Constitution Amendment of 1995 has now been applied to the State of J&K.
  • People living near the International Border have been brought at par with those living near the Line of Control for reservation in State Government jobs by amending the Jammu and Kashmir Reservation Act, 2004 through an Ordinance. Earlier, the provision of 3% reservation was available only for youth living within 6 kms. Of LoC in J&K. Now, this provision will be applicable for people living near the international border also. This has been a long-pending demand of the population living near the international border, as they have been facing the brunt of cross border firing in J&K.

Constitution (Seventy-Seventh Amendment) Act, 1995 was enacted thereby inserting clause (4A) after clause 4 of Article 16 of the Constitution of India.  Clause (4A) provides for giving benefit of promotion in service to the Scheduled Castes and the Scheduled Tribes.  The Constitution (One Hundred and Third Amendment) Act, 2019 has been applied in the country except for Jammu and Kashmir and with extension of Act to Jammu and Kashmir economically weaker sections of State would also avail the benefit of reservation.

Hot Off The PressNews

Supreme Court: The bench of JS Khehar, CJ and AK Goel and Dr. DY Chandrachud, JJ issued notice to the Centre seeking it’s response on the validity of the special status of the State of Jammu and Kashmir under Article 370 of the Constitution.

As per the petitioner Kumari Vijayalakshmi Jha, Article 370 of the Constitution had lapsed automatically with the dissolution of the Constituent Assembly of Jammu and Kashmir on January 26, 1957. The plea also urged to declare the separate Constitution of Jammu and Kashmir as invalid. The petitioner approached the Supreme Court after her plea was dismissed by the Delhi High Court last year.

Source: ANI