Kashmir issue in Supreme Court: Personal liberty must be balanced against national security requirements, says Justice BR Gavai

The Supreme Court’s Justice BR Gavai, hearing a group of petitions on restrictions in Jammu and Kashmir on Tuesday, remarked that personal liberty “will have to be balanced against the requirements of national security.” Justice Gavai’s oral observation came in response to an argument by senior advocate Santosh Hegde, who claimed that Kashmir has seen a sustained media and communications blackout for 57 days. Hegde was quoted by Bar and Bench as saying, “Liberty does not mean mere animal existence. Right to communicate with loved ones is included in the right to liberty.” During the hearing , the Jammu and Kashmir administration said that 100 percent landlines are working in the Valley and there is no restriction on the movement of people during the day time. Solicitor General Tushar Mehta, appearing for Jammu and Kashmir administration, told a bench headed by Justice NV Ramana that if mobile and internet facility were resorted in the Valley, then fake WhatsApp messages would be circulated from “across the border” and it might incite violence there. Several petitioners, including Executive Editor of Kashmir Times Anuradha Bhasin, activist Tehseen Poonawala and Foundation of Media Professionals, through its president Paranjoy Guha Thakurta, claimed that there was a complete lockdown of communication networks and restrictions on movement of journalists. [caption id=“attachment_5542981” align=“alignleft” width=“380”]  File image of the Supreme Court. AP[/caption] The bench, also comprising Justices R Subhash Reddy and B R Gavai, sought a response from Centre and asked the petitioners to file their rejoinder and listed the matter in the second week of November. At the outset, the top court dealing with the petition of CPM general secretary Sitaram Yechury said that it was a habeas corpus (writ directing production of a person in detention before the court) petition and he has already been granted indulgence by the court. “You have moved a habeas corpus petition. That prayer no longer survives as that person — Mohammed Yousuf Tarigami — has himself moved the apex court challenging the abrogation of Article 370. It was a limited question. what further relief do you want,” the bench told senior advocate Raju Ramachandaran, representing Yechury. Ramachandaran said he wants that either the detention of Tarigami be declared illegal or the authority be asked to justify his detention after 5 August. To this, the bench said that Jammu and Kashmir High Court is functioning smoothly and the petitioner can approach it for relief. “If you want this petition to be heard here, then it will come in due course of time and if you want your petition to be heard urgently, then you shall go to the Jammu and Kashmir High Court,” the bench said. Ramachandaran insisted that the matter be heard by the top court after which the bench directed the Centre to file its response and listed it for hearing in November. In another related matter, senior advocate Huzefa A Ahmadi, appearing for senior Congress leader Ghulam Nabi Azad, said as per the court orders, Azad had visited the state and thus, his first prayer in the petition has been complied with. Ahmadi said his other prayers still remain and the authority should tell the court as under what provisions of law the restrictions have been imposed on movement of people in the Valley. Mehta told the bench that during the day time, there are no restrictions on movement of people in the Valley and curbs are imposed depending upon situation during the night time. The bench asked Mehta to file an affidavit related to the restrictions on movement of people within two weeks. The apex court also refused to entertain a petition filed by Sameer Kaul seeking restoration of internet communication services in hospitals and directed him to approach the Jammu and Kashmir High Court. Dealing with the petitions of Bhasin, Poonawalla and Foundation of Media Professionals, the top court questioned the number of intervention applications filed in the case. It restrained the filing of any fresh intervention application on the issue related to restrictions imposed in the Valley. Mehta questioned the locus of Poonawalla and said that he is a “TV personality and not the resident of the state”. To this, Justice Gavai apparently referring to Judge BH Loya death case said, “Is this Tehseen Poonawalla the same person, who has levelled certain allegation against us in the Nagpur case?”. Senior advocate Meenakshi Arora, appearing for Poonawalla said she is not in know how of any such incident, but the issue of restrictions in Kashmir, which is on its 57th day, is a serious matter and needs to be addressed. She stated that they are aggrieved with the complete shutdown in the Valley as people are being forced to suffer as most of the hospitals are in Srinagar. “Under what notification this lockdown was done in Kashmir Valley, the government must tell the court,” she said. Mehta denied any such claims and said hospitals are working smoothly in the Valley and lakhs of people have availed the medical facilities since 5 August till mid September. “There are no restrictions on health facilities and all the hospitals are working smoothly. These issues are being raised to serve some other interests,” he said, adding that if the internet services are restored then there will be circulation of fake news. He said that internet kiosks are being set up in various areas for the people and journalists. The bench, while listing all these matters related to restrictions in Kashmir in the month of November, asked the Centre to file its reply on these petitions. With inputs from PTI