Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta and A.S. Bopanna, JJ., expressed that

Government accommodation is only meant for in-service officers and not for the retirees or those who have demitted office.

The right to shelter does not mean right to government accommodation.

Challenge 

Decision of the Punjab and Haryana High Court has been challenged in the present matter.

Background

Single Bench allowed the petition of a Kashmiri migrant, respondent – Onkar Nath Dhar who shifted to Jammu in the year 1989 or so. He was transferred to the office of the Intelligence Bureau in Delhi. Later, he was transferred to Faridabad, wherein he was allotted a government accommodation. Respondent attained the age of superannuation in the year 2006.

Respondent on making a representation to the appellant was allowed to retain the government accommodation till the circumstances prevailing in Jammu and Kashmir improve and Government makes it possible for him to return to his native place.

An eviction order was passed against Dhar under Public Premises (Eviction of Unauthorised Occupant) Act, 1971, but the same was stayed by the Additional District Judge, Delhi.

Later, the Single Judge Bench relied upon an order passed by this Court in J.L. Koul v. State of J&K, (2010) 1 SCC 371, wherein it was held that it was not possible for Dhar to return to his own State and that due to which eviction order shall be kept in abeyance. The same was affirmed by the Division Bench of Punjab and Haryana High Court.

Analysis, Law and Decision

Supreme Court opined that the High Court Orders were unsustainable.

In view of the plethora of Judgments referred by the Court, Bench affirmed that

Government accommodation could not have been allotted to a person who had demitted office. No exception was carved out even in respect of the persons who held Constitutional posts at one point of time.

Therefore, decision of the Punjab and Haryana High Court was erroneous on the basis of compassion showed to displaced persons on account of terrorist activities in the State.

Further, reasoning its decision, Bench stated that compassion could be shown for accommodating the displaced persons for one or two months but to allow them to retain the Government accommodation already allotted or to allot an alternative accommodation that too with a nominal licence fee defeats the very purpose of the Government accommodation which is meant for serving officers.

If a retired government employee have no residence, they have an option to avail transit accommodation or to receive cash compensation in the place of transit accommodation. 

Right to Shelter?

Elaborating more, the Court stated that the right of shelter is taken care of when alternative Transit accommodation is made available to the migrant to meet out the emergent situation.

Government accommodation is meant for serving officers and officials and not to the retirees as benevolence and distribution of largesse.

Policy of Centre to provide accommodation? | Terrorism in J&K

Answering in negative, Court stated that Centre or State do not have any policy to provide the accommodation to displaced persons on account of terrorism in the State of Jammu and Kashmir.

Adding to the above discussion, Bench held that there is no indefeasible right in any citizen for allotment of government accommodation on a nominal licence fee.

In view of the decision of J.L. Koul  v. State of J&K, (2010) 1 SCC 371  the Kashmiri migrants are entitled to transit accommodation and if transit accommodation could not be provided then money for residence and expenses.

Dhar and such like persons are not from the poorest section of the migrants but have worked in the higher echelons of the bureaucracy. To say that they are enforcing their right to shelter only till such time the conditions are conducive for their safe return is wholly illusory.

Concluding the matter, Supreme Court found that the orders of the High Courts were wholly arbitrary and irrational, therefore the present appeal was allowed.

Though, the Court directed respondent-Dhar to hand over vacant physical possession of the premises on or before 31-10-2021, i.e., after 15 years of his attaining the age of superannuation. [Union of India v. Onkar Nath Dhar, 2021 SCC OnLine SC 574, decided on 5-08-2021]

Op EdsOP. ED.

The meaning of the word “genocide” is “genos” (race) – a Greek word and Latin word “cidi” – killing. In recent times of human history, mass killing of the Zews by the Nazis during Second World War can be surely termed as genocide.

In 1943, it was Raphael Lemkin, a lawyer of Polonised-Jewish descent who was particularly moved by the atrocities against the Armenians in Turkey, and he was the first person to define such systematic and planned exterminations within legal frames. He had coined the word “genocide,” using the Greek word “genos” which stands for “family”, “tribe” or “race” and the Latin “cide” standing for “killing”. As the term “genocide” was coined, the portmanteau word “armenocide” also emerged to depict the Armenian genocide.

In 1915, (much before the term “genocide” was coined) the Ottomans started out actions to oust and massacre Armenians living on the territory of their empire. It is estimated that during that period, there were about 2 million Armenians living in the country. In a matter of few years only, accounts suggest that their number dropped to some 5,00,000. Nowadays, the majority of historians agree that this was genocide, a mean of orchestrated and systematic campaign to exterminate an entire ethnic group of people. On the other hand, the Turkish Government does not acknowledge the wrongdoings as a genocide.

The Ottomans were Muslims; the Armenians were Christians.

History further says that Armenians, “tended to be better educated and wealthier than their Turkish neighbours, who in turn tended to resent their success. (Same was the case of Hindu Pandits, who in comparison, were better educated and wealthier).

After the Second World War, to prevent repetition of such inhuman act General Assembly started to formulate a convention. On 9-12-1948, General Assembly passed a resolution, as part of international law, the Convention on the Prevention and Punishment of the Crime of Genocide1. Thus, genocide means indiscriminate killings of a national, ethical, racial or religious group. Article II of the Convention provides in details, which acts and omission are to be termed as genocide:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group; and

(e) forcibly transferring children of the group to another group.

If we go through the Convention (Genocide), we find that the contracting parties are obliged to criminalise genocide and punish their perpetrators by the legal systems of the contracting State parties. And provision of judicial cooperation among the State parties are there in the Convention.

This Convention punishes perpetrators of genocide even if they hold a constitutional post or public official. (Article IV)

Even after enactment of the Genocide Convention, there seems to be some gap in the statutory language. This Convention does not cover linguistic or cultural dissemination. In the modern world such types of dissemination are occurring. As for example the massacres of Bengalis in East Pakistan were nothing but large-scale genocide. So is the case of Rohingya Muslims.

In 1990, Panun Kashmir Movement (PKM) and All India Kashmiri Samaj (AIKS) filed a petition before the National Human Rights Commission, asking mass killing of Hindus in Kashmir to be declared as genocide.

The National Human Rights Commission making a strict interpretation of the Protection of Human Rights Act, 19932 held that, human rights mean the rights relating to life, liberty, equality, and dignity of the individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India.

Thus, international covenants mean the International Covenant on Civil and Political Rights3  and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of UN on the 19-12-1966 and 16-12-1966 and such other covenant or convention adopted by the General Assembly of the UN as Central Government by notification specify.

As per detailed response of Union of India, since genocide is not mentioned in Sections 2(d) and 2(f)5 of the said Act, Genocide Convention is not applicable in this context in India.

The Commission also held that, though India is signatory of this Convention, but to implement the Convention necessary legislation (under Article 253 of the Indian Constitution6) has not been enacted and also does not mention as per Article III of the Genocide Convention where some acts are prohibited. (Article III ― genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, complicity in genocide.)

The PKM filed a rejoinder and maintained that genocide is international crime and has become part of customary law as jus cogens. Thus, even in absence of express statutory legislation as per the Constitution, this offence is punishable.

We can add that, Judiciary under Article 517 can bring in international legal principles in national law. It is the rule of statutory interpretation that national law shall be interpreted in consonance with international law. In Vellore Citizens’ Welfare Forum v. Union of India8, the foreign concept of sustainable development (Stockholm Convention9) has been incorporated by Indian judiciary in the national system.

Conclusion

There are mainly two types of interpretation literal and liberal. Liberal interpretation is made in human rights legislations, constitutional laws. It can be also termed as purposive one. Strict or literal interpretation is made in penal laws. Thus, it can be concluded that National Human Rights Commission has erred in applying its recommendary power to alieavate the position of Hindus in the valley of J&K. The targeted killing of Hindus in huge number in the Jammu and Kashmir valley is nothing but genocide. They are now scattered over the whole country and facing huge socio-economic challenges. One can say that, they shall be never able to return their roots.


Assistant Professor, Symbiosis Law School, Pune, e-mail: bibhabasumisra@gmail.com.

†† Assistant Professor, Symbiosis law school; Pune

1 <http://www.scconline.com/DocumentLink/31885VjH>.

2 <http://www.scconline.com/DocumentLink/2K2MTxa4>.

3 <http://www.scconline.com/DocumentLink/79ZxK20m>.

5 <http://www.scconline.com/DocumentLink/m79saF87>.

6 <http://www.scconline.com/DocumentLink/61pY4yl7>.

7 <http://www.scconline.com/DocumentLink/0k1WtWgV>.

8 (1996) 5 SCC 647.

9 <http://www.scconline.com/DocumentLink/4kxm4GM3>.

Case BriefsHigh Courts

Jammu and Kashmir High Court: Rajnesh Oswal, J., heard the instant petition against the order of the Trial Court whereby the petitioner had been directed to pay maintenance to the allegedly divorcee lady. The Bench stated that,

“The petitioner had not led any evidence as to who sent the divorce to the respondent (wife) to prove the plea of Talak. Otherwise also a meager amount of Rs.2000 as has been awarded to the respondent 1 herein, that in the present era of inflation can in no way be termed as either exorbitant or excessive.”

The petitioner contended that he had already divorced his wife vide “Talaq Nama‟ dated 02-08-2011 which was sent to her through registered post. The facts of the case were such that the  wife of the petitioner had filed a petition for interim maintenance before the Trial Court, wherein the petitioner had claimed that he had already divorced her and as such, he was not under any obligation to maintain the divorced lady. The Trial Court, after relying on the verdict of Supreme Court in Shameem Ara v. State of U.P., AIR 2002 S.C. 355,  and considering the evidence on record granted maintenance of Rs.2000 (Rupees Two thousand) per month to the wife.

Referring to the observations of the Trial Court and Sessions Court, the Bench stated that the Magistrate had held that the petitioner had miserably failed to prove the requisites of Talaq and also that Talaknama was sent to the respondent. The petitioner had not been able to prove as to on which date the divorce was pronounced upon the respondent(wife). The delivery of the envelope was also doubtful as the postman had not seen any such record in which he had obtained signatures of the respondent. Moreover, none of the witnesses produced by the petitioner had stated whether any-one tried to reconcile the parties before the divorce. Needless to mention here that if the plea of Talak is taken then the same is required to be proved like any other fact.

The Bench stated that there was not even an iota of evidence that any reconciliation efforts were made by two arbiters one chosen by the wife from her family and the other by the husband from his family. So there was no perversity in the finding returned by the Magistrate and upheld by the Court of revision that the petitioner had not been able to prove the plea of Talak taken in his objections. Furthermore, the petitioner had not led any evidence as to who sent the divorce to the respondent (wife) to prove the plea of Talak. Otherwise also a meager amount of Rs.2000/- (Rupees Two thousand) as has been awarded to the respondent no.1 herein, that in the present era of inflation can in no way be termed as either exorbitant or excessive.

In view of the above, the Court denied to interfere with the orders impugned and the petition was dismissed for being devoid of merit.

[Abdul Majeed Dar V. Hafiza Begum 2021 SCC OnLine J&K 294, Decided On 26-03-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner/Applicant(s): Adv. Parvaiz Nazir

For the Respondent(s): Adv. Shabir Ahmad

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian*, JJ has set aside the order of the single bench of Jammu and Kashmir High Court which quashed an administrative Order of the Chief Justice prescribing certain qualifications for promotion to the post of Head Assistant along with a power of relaxation, persons who were fully qualified as per the rules at the time of appointment. The Court held,

“… the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16.”

Background

The respondents were originally appointed as peons (Class-IV) during the period 1989¬1995. They were promoted as Junior Assistants in the year 1997 and as Senior Assistants in 1998-1999.

In contrast, the appellants in these appeals were directly recruited to the post of Junior Assistants in the year 1998. They were promoted as Senior Assistants on various dates in the years 2001, 2005, 2006 and 2008.

In exercise of the power conferred by Rule 6 of the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968, the Chief Justice of the High Court of Jammu & Kashmir issued an Office Order No.579 dated 24.10.2008, prescribing the qualifications as well as the mode of recruitment for appointment and promotion to various posts in the High Court.

By a common Order dated 30.08.2013, a learned Judge of the High Court quashed the Chief Justice’s Order dated 24.10.2008 on the reasoning

(i) that all persons working as Senior Assistants constituted a homogenous group and hence there cannot be any differentiation among them on the basis of educational qualifications;

(ii)that the Chief Justice’s order dated 24.10.2008 was not put up before the Full Court for approval;

(iii) that Note¬2 of the Chief Justice’s Order restricts the power of relaxation available to the Chief Justice only to cases of persons appointed before 25.04.1987 and hence it is invalid; and

(iv) that the Order of the Chief Justice had the effect of affecting individuals adversely with retrospective effect.

The said judgment was challenged on the ground that the High Court was wrong in thinking that Note¬2 of the Order of the Chief Justice curtailed or restricted the power of relaxation available with him.

Analysis

In exercise of the powers conferred by Sub-section (2) of Section 108 of the Constitution of Jammu & Kashmir, the High Court issued a set of Rules known as the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968, with the approval of the Governor of the State.

“While Rule 4 stipulates that all appointments of the staff of the High Court including promotions shall be made by the Chief Justice, the power to lay down the qualifications and to determine the mode of recruitment is conferred by Rule 6 upon the Chief Justice.”

The prescription of the minimum educational qualification of a graduation, was not an innovation by the Chief Justice, made all of a sudden in the year 2008. It appears that even way back on 25.04.1987, graduation was prescribed as a qualification for promotion to the post of Head Assistant.

“If the authority conferred with the power to relax, chooses to regulate the manner of exercise of his own power, the same cannot be assailed as arbitrary. The notification dated 25.04.1987 prescribed for the first time, graduation as a necessary qualification. This is why, the Chief Justice chose by his Order, to limit his own power of relaxation to cases where appointments were made before the cut-off date.”

Further, it is worth noticing that the respondents have actually secured a second lease of life, after having failed in the first round of litigation. After the office Order dated 24.10.2008 was issued by the Chief Justice prescribing the qualifications for direct recruitment/promotion to various posts, the contesting respondents got promoted as Head Assistants on 24.11.2008 only because suitable eligible candidates were not available.

“It is only after their promotion was set aside in the first writ petition filed by the qualified candidates, that the contesting respondents woke up from the slumber and initiated a second round of litigation by challenging the Order of the Chief Justice.”

The Order of promotion dated 24.11.2008 promoting the contesting respondents as Head Assistants made it clear that their appointments were only till eligible and suitable candidates are posted to these posts and that they can be considered for regularisation/appointment only if they attain the qualification and experience prescribed for the post. But the contesting respondents did not choose to challenge the Order of Chief Justice dated 24.10.2008, until the writ petition filed against their promotion was allowed by the single Judge and the Order also got confirmed in writ appeal by the Division Bench.

The contention that the Order of the Chief Justice affects the staff adversely with retrospective effect was also found to be completely incorrect.

“The Order dated 24.10.2008 did not at all impact the promotions gained by persons upto 24.10.2008. We are concerned in this case with the competing claims of the appellants and the contesting respondents for promotion to the post of Head Assistant. The entitlement of unqualified candidates to seek promotion to the post of Head Assistant after 24.10.2008, is what was impacted by the Order of the Chief Justice.”

It was hence held that the High Court erred in thinking that the impugned action of the  Chief Justice violated Article 14 by creating a distinction between graduates and non graduates among the same category of persons who constituted a homogenous class.

“… the Court shall have to be conscious about the need for maintaining efficiency in service, while judging the validity of the classification. Though the High Court took note of these decisions, the High Court fell into an error in thinking that in the facts and circumstances of the case, the High Court could not establish the necessity for higher qualification for the efficient discharge of the functions of higher posts. It is apparent from the facts and circumstances of the case that the non-graduates have had opportunities to qualify themselves, which they have also done. Therefore, the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16.”

Relief 

However, in view of the fact that the contesting respondents have been working in the post of Head Assistants for quite some time and have also acquired the necessary qualifications, the Court held that they need not be reverted at this stage.

“But the seniority of the appellants vis-a-vis the contesting respondents shall be based on the dates of acquisition of such qualification and the length of service taken together. In other words, the seniority of the contesting respondents will be decided not on the basis of the date of their promotion but on the basis of the date of their acquiring the qualification while occupying the promoted posts.”

[Ashok Kumar v. State of Jammu and Kashmir, 2021 SCC OnLine SC 24, decided on 18.01.2021]


*Justice V. Ramasubramanian has penned this judgment 

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Division Bench of Sanjay Dhar and Rajesh Bindal, JJ. while dismissing the present application seeking leave to appeal, said, “…the non-applicant cannot be convicted on the statement of co-accused recorded under Section 67 of the NDPS Act, as the same cannot be used as a confessional statement being barred under the provision of Section 25 of the Evidence Act.”

Background

Through the instant application, the applicant; Narcotics Control Bureau (NCB) seeks leave to file an appeal against the judgment dated 11-11-2019 passed by the Principal Sessions Judge, Kathua (“Special Court”) whereby the non-applicant Rafi Ahmed has been acquitted of the charges for the commission of offences under Sections 8, Section 21, Section 27, Section 28 of Narcotic Drugs and Psychotropic Substances Act, 1985.

 Observation

Court placed reliance over the case of, Toofan Singh v. State of Tamil Nadu, 2020 SCC OnLine SC 882, wherein the Court said, “… (i) That the officers who are invested with powers under section 53 of the NDPS Act are police officers within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act”.

Decision

Dismissing the present application, the Court remarked, “…the learned Special Court has rightly acquitted the non-applicant of the charges leveled against him. The law does not allow the State to file an appeal against an order of acquittal under Section 417 CrPC. The State has to seek leave to file an appeal.”[Union of India v. Rafi Ahmed, 2020 SCC OnLine J&K 643, decided on 15-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Hot Off The PressNews

Supreme Court: The Centre has told a 3-judge bench of NV Ramana, R Subhash Reddy and B R Gavai, JJ that a special committee looking into the issue of internet restoration in Jammu and Kashmir has decided to provide 4G internet access on a trial basis in limited areas of the union territory after August 15.

Attorney General K K Venugopal, appearing for the Centre, told the Court that the committee has decided that trial will be done in one district each in Jammu and Kashmir division. He said that the Committee has decided that access to 4G internet in J-K will be given in a calibrated manner and outcome of the trial will be reviewed after two months.

The Court noticed that this was a fairly good stand on the part of Centre and J-K administration.

High speed internet service in J-K was suspended in August last year when the Centre announced revocation of its special status and bifurcation of the state into two UTs — Ladakh and Jammu and Kashmir. On August 7, the top court had asked the J-K administration to explore the possibility of restoring 4G services in certain areas of the Union Territory.

(Source: PTI)

Hot Off The PressNews

Ministry of External Affairs issues statement with regard to China’s discussion in UNSC on Jammu and Kashmir:

“We have noted that China initiated a discussion in the UN Security Council on issues pertaining to the Indian Union Territory of Jammu & Kashmir.

This was not the first time that China has sought to raise a subject that is solely an internal matter of India. As on such previous occasions, this attempt too met with little support from the international community. We firmly reject China’s interference in our internal affairs and urge it to draw proper conclusions from such infructuous attempts.”


Ministry of External Affairs

[Statemnet dt. 06-08-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Tashi Rabstan, J. addressed a matter wherein 100 % reservation in public employment for J&K domiciles in the UT has been challenged.

Petitioner’s 1 and 3 are domiciles of the State of Haryana and Petitioner 2 a permanent resident of the erstwhile State of Jammu and Kashmir who is now a resident of UT of Ladakh.

Petitioners challenged Sections 3A, 5A, 6, 7, and 8 of Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010, on the ground that the same is violative of Article 14, 16, 19 and 21 of the Constitution of India.

Petitioner contended that Parliament has never delegated the law-making power of Article 16(3) of Constitution to the Central Government under Section 96 of Jammu and Kashmir Reorganization Act, 2019. 

“…power delegated under Section 96 was only for the purpose of facilitating the applications of already prevailing law in former State of Jammu and Kashmir or to make laws applicable to new Union Territories of J&K and Ladakh.”

Further, it was contended that the power delegated under Section 96 shall not be in any manner construed as a delegation of parliamentary power of Article 16(3) of the Constitution of India.

By amending Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 by two executive orders dated 31-03-2020 and 03-04-2020, the Union Ministry of Home Affairs has debarred the non-domiciles from employment in J&K.

After the amendment in Section 96, the term “Permanent Resident of J&K” was replaced by “Domiciles” of UT of J&K.

Court directed for issuance of notice to the respondents. Matter to be listed on 03-09-2020. [Nishant Khatri v. UOI, 2020 SCC OnLine J&K 380, decided on 04-08-2020]

Fact ChecksNews

An official looking order has been doing the rounds on social media that the Home Department of Jammu & Kashmir has ordered restoration of 4G services. The order dated 27.07.20 is purported to be signed by Shaleen Kabra who is the Principal Secretary to the Government (Home) in J&K. The order states that as schools are closed down due to the COVID situation, access to online classes is a bit hard due to 2G speed. The Secretary being apprised of the situation has ordered restoration of 4G internet. The official looking order can be seen below.

Now let us test the veracity of the claims. The Department of Information and Public Relations, J&K in an article uploaded on https://www.diprjkfactcheck.in/ on 28.07.2020 has clarified that an order mentioning about the directions to Internet Service Providers for lifting speed related restrictions is under circulation in the social media. This order is fake and no such direction has been issued by the Principal Secretary of the Home department, J & K.[1]

Therefore based on the clarification issued by the Department of Information and Public Relations of J&K, we can safely conclude that the message doing the rounds on social media that 4G services has been restored in Jammu & Kashmir is false.


[1] https://www.diprjkfactcheck.in/newsdet.aspx?id=225


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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)

Hot Off The PressNews

The Centre informed that since the scrapping of Article 370 in Jammu and Kashmir on 05-08-2019 till date, 765 persons have been arrested in 190 cases registered relating to stone-pelting and law & order. From 01-01-2019 to 04-08-2019, 361 such cases were registered.

The Government has initiated multipronged policies to check the stone-pelting menace and has succeeded in curbing it to the extent that a large number of troublemakers, instigators, and mob mobilizers have been identified and various preventive measures have been taken against them which include detention under PSA and preventive arrests. The investigation has revealed that various separatist organisations and activists which are part of Hurriyat have been behind the incidents of stone-pelting in Kashmir valley. NIA has chargesheeted 18 persons in the terror funding cases so far.

In a related question, the Government informed that 950 incidents of ceasefire violations along Line of Control from across the border in Jammu and Kashmir were reported during August, 2019 to October, 2019.

On the question of average attendance in Kashmir schools since August 5, the Government said that at present the attendance of students stands at 99.7% during the ongoing examinations. Initially, the attendance of the students was thin which gradually picked up.

The Government also informed that it has not issued an advisory for tourists in Jammu and Kashmir recently and that a total of  34,10,219 tourists, including 12,934 foreign tourists, visited Jammu & Kashmir during last 6 months and an income of Rs. 25.12 crore has been earned through tourism during this period.

These were stated by the Minister of State for Home Affairs, Shri G. Kishan Reddy in a written reply to questions in the Lok Sabha today.


Ministry of Home Affairs

[Source: PIB]

Press Release dt. 19-11-2019]

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

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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.


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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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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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Following statement was issued today by the Spokesman for UN Secretary-General António Guterres:

The Secretary-General has been following the situation in Jammu and Kashmir with concern and makes an appeal for maximum restraint.

The position of the United Nations on this region is governed by the Charter of the United Nations and applicable Security Council resolutions.

The Secretary-General also recalls the 1972 Agreement on bilateral relations between India and Pakistan, also known as the Simla Agreement, which states that the final status of Jammu and Kashmir is to be settled by peaceful means, in accordance with the Charter of the United Nations.

The Secretary-General is also concerned over reports of restrictions on the Indian side of Kashmir, which could exacerbate the human rights situation in the region.

The Secretary-General calls on all parties to refrain from taking steps that could affect the status of Jammu and Kashmir.


United Nations

[Press Release dt. 08-08-2019]

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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)


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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!

Legislation UpdatesNotifications

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