- Rajesh Tyagi/ 14.8.2019
Yesterday, on 13 August, Supreme Court refused an early hearing in the Writ Petition challenging the imposition of an undeclared emergency in Kashmir by the central government that includes detention of the opposition leaders, blackout of all communication and shutdown of all facilities- banking, grocery, bakery etc.
A three-judge bench comprising Justices Arun Mishra, M.R. Shah and Ajay Rastogi refused to take up the matter for hearing and adjourned it for two weeks on Tuesday.
Declining the request for urgent hearing in the case, the Court observed "The present situation in Jammu and Kashmir is very sensitive and it should be ensured that there is no loss of life there".
Fearing a backlash from the locals to its cunning political intrigue of splitting the erstwhile state of Jammu and Kashmir into two centre ruled Union Territories and forcing the Constitution of India upon Kashmir through abrogation of its Articles 370 and 35-A that had conferred limited autonomy upon the state, the centre had placed the entire region under a military lockdown. Tens of thousands of security personnel were dispatched to valley well in advance to reinforce the force of more than five lakh already deployed in the valley with less than a population of 14 lakh.
The whole region is placed under curfew. People are facing acute hardship as not even the most essential services like banks and groceries are being permitted to operate.
The Indian government, in implementing the total and complete blockade of Kashmir from rest of the world, even before it revoked Kashmir’s limited autonomy, has justified the move as a means to maintain order in the restive region, without specifying how long the blackout will last.
Amidst the trumpets to modernize India, the country has become a leader in information censors, often to suppress protests. This year, internet was blocked 134 times in the country. Kashmir alone has faced 54 such blackouts.
Denying access to the Kashmiri People even to crude essentials of life, on mere apprehension of an unrest, exposes before our eyes the phoney character of pledges and declarations of the Indian state and its Constitution.
Tehsin Poonawala, a pro-Congress activist had moved Supreme Court claiming that he was not putting any challenge to the bifurcation of the state and abrogation of its autonomy, but only demanding that the illegal lockdown must end and the civil liberties be restored and respected by the government.
Admonishing the Petitioner for lacking the locus to file the petition and for poor content of the petition, the bench observed that ‘We must have faith in the government’.
“We must have faith in the Government” was the concluding observation in the 1976 Constitution Bench decision of Supreme Court in ADM Jabalpur case. The compliant Judgement, passed in dark days of Emergency, laid down that all fundamental rights, including the right to life, would remain suspended on proclamation of emergency and no jurisdiction of any court can be invoked for protection of rights. Bhagwati J, one of the parties to the Judgement, wrote that the ‘sovereign can even whip its subject citizens’.
The Judgement was widely criticised later even among the power corridors. Bourgeois political leaders, having themselves suffered the wrath of emergency, pledged not to permit its repetition in future. The Parliament, through 44th amendment of the Constitution, took Articles 20 and 21 out of the purview of Article 359 that empowered the Government to impose emergency. Majority verdict in ADM Jabalpur case was ignored over decades and finally overruled by the Supreme Court after four decades in 2017 in the famous Right to Privacy case.
In less than two years after overturning ADM Jabalpur, the Supreme Court, seems to be falling back upon it!
Protection to liberties and rights is obviously needed not in times of peace but turmoil. If in these times the Constitution cannot come to aid of the victim citizens, if the Courts wriggle out of their duty claiming that situation was not conducive to repel the state assault, then all proclamations and declarations in law would be rendered otiose. If the executive is the sole repository of public faith then for what stand the Courts and the Constitution?
In times of peace, all sophistry is pressed into service, all demagogy applied to put the regime in bright light of democracy, but in times of turmoil, when they are really needed, they wither away simply. In hours of the dark, leaving the rights and liberties to the whims of the executive fiat, that continues to inflict wound after wound, the Courts keep on waiting for the sunrise with fingers crossed, advising people to ‘have faith in the government’!
When it comes to the question of interests of common man, the professed watchdogs of the rights and liberties in bourgeois regime, who hold even night hearings at their house for corporates, act like a doctor who refuses to treat a patient for that he finds the patient in too serious condition or an ironsmith who refuses to hammer the iron as he finds the iron too red hot!
By denying a hearing in Kashmir case, the Supreme Court has virtually retreated to its position of 1976, since so widely deprecated and condemned.
Frightened government, on the other hand seems to have no real intention to ease the restrictions. It would, on the contrary, leave no stone unturned to turn the valley in a ghetto for its overwhelmingly muslim population.
A three-judge bench comprising Justices Arun Mishra, M.R. Shah and Ajay Rastogi refused to take up the matter for hearing and adjourned it for two weeks on Tuesday.
Declining the request for urgent hearing in the case, the Court observed "The present situation in Jammu and Kashmir is very sensitive and it should be ensured that there is no loss of life there".
Fearing a backlash from the locals to its cunning political intrigue of splitting the erstwhile state of Jammu and Kashmir into two centre ruled Union Territories and forcing the Constitution of India upon Kashmir through abrogation of its Articles 370 and 35-A that had conferred limited autonomy upon the state, the centre had placed the entire region under a military lockdown. Tens of thousands of security personnel were dispatched to valley well in advance to reinforce the force of more than five lakh already deployed in the valley with less than a population of 14 lakh.
The whole region is placed under curfew. People are facing acute hardship as not even the most essential services like banks and groceries are being permitted to operate.
The Indian government, in implementing the total and complete blockade of Kashmir from rest of the world, even before it revoked Kashmir’s limited autonomy, has justified the move as a means to maintain order in the restive region, without specifying how long the blackout will last.
Amidst the trumpets to modernize India, the country has become a leader in information censors, often to suppress protests. This year, internet was blocked 134 times in the country. Kashmir alone has faced 54 such blackouts.
Denying access to the Kashmiri People even to crude essentials of life, on mere apprehension of an unrest, exposes before our eyes the phoney character of pledges and declarations of the Indian state and its Constitution.
Tehsin Poonawala, a pro-Congress activist had moved Supreme Court claiming that he was not putting any challenge to the bifurcation of the state and abrogation of its autonomy, but only demanding that the illegal lockdown must end and the civil liberties be restored and respected by the government.
Admonishing the Petitioner for lacking the locus to file the petition and for poor content of the petition, the bench observed that ‘We must have faith in the government’.
“We must have faith in the Government” was the concluding observation in the 1976 Constitution Bench decision of Supreme Court in ADM Jabalpur case. The compliant Judgement, passed in dark days of Emergency, laid down that all fundamental rights, including the right to life, would remain suspended on proclamation of emergency and no jurisdiction of any court can be invoked for protection of rights. Bhagwati J, one of the parties to the Judgement, wrote that the ‘sovereign can even whip its subject citizens’.
The Judgement was widely criticised later even among the power corridors. Bourgeois political leaders, having themselves suffered the wrath of emergency, pledged not to permit its repetition in future. The Parliament, through 44th amendment of the Constitution, took Articles 20 and 21 out of the purview of Article 359 that empowered the Government to impose emergency. Majority verdict in ADM Jabalpur case was ignored over decades and finally overruled by the Supreme Court after four decades in 2017 in the famous Right to Privacy case.
In less than two years after overturning ADM Jabalpur, the Supreme Court, seems to be falling back upon it!
Protection to liberties and rights is obviously needed not in times of peace but turmoil. If in these times the Constitution cannot come to aid of the victim citizens, if the Courts wriggle out of their duty claiming that situation was not conducive to repel the state assault, then all proclamations and declarations in law would be rendered otiose. If the executive is the sole repository of public faith then for what stand the Courts and the Constitution?
In times of peace, all sophistry is pressed into service, all demagogy applied to put the regime in bright light of democracy, but in times of turmoil, when they are really needed, they wither away simply. In hours of the dark, leaving the rights and liberties to the whims of the executive fiat, that continues to inflict wound after wound, the Courts keep on waiting for the sunrise with fingers crossed, advising people to ‘have faith in the government’!
When it comes to the question of interests of common man, the professed watchdogs of the rights and liberties in bourgeois regime, who hold even night hearings at their house for corporates, act like a doctor who refuses to treat a patient for that he finds the patient in too serious condition or an ironsmith who refuses to hammer the iron as he finds the iron too red hot!
By denying a hearing in Kashmir case, the Supreme Court has virtually retreated to its position of 1976, since so widely deprecated and condemned.
Frightened government, on the other hand seems to have no real intention to ease the restrictions. It would, on the contrary, leave no stone unturned to turn the valley in a ghetto for its overwhelmingly muslim population.
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