Number of Days of Kashmir Lockdown: 58. Number of Affidavits Filed By Centre in SC: 0

No explanation or affidavits have been filed by the government on the Kashmir decision and the current situation, in what legal experts call a travesty of the habeas corpus.

Even as the lockdown and communication blockade imposed in Jammu and Kashmir enters its 58th day, the Centre is yet to file its counter-affidavits in the bunch of petitions filed in the Supreme Court questioning its actions.

It is beyond dispute that these measures – which were termed a ‘collective punishment on people’ by the United Nations Human rights body – have impacted the civil liberties of the people of J&K. Such restrictions will pass the constitutional muster only if they satisfy the test of reasonableness, which will include the tests of legality, necessity and proportionality.

Therefore, when the invasion on peoples’ civil liberties is questioned in a constitutional court, it is incumbent on the government to explain the statutory basis of its measures, and how they are justifiable on Constitutional grounds. The government has to show that the measures were absolutely necessary and were taken invoking statutorily available powers. Additionally, the government should also demonstrate the proportionality of the measures showing why lesser degree of infringements on rights will not meet the government’s stated objectives.

Unfortunately, even after several weeks, no such explanation is forthcoming from the government.

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Anuradha Bhasin’s petition challenging the media curbs and snapping of communication channels was filed on August 10, within five days of the Centre’s measures. The petition has been listed six times, including today’s posting.

Except for a statement filed by the secretary to the government of J&K’s Department of Information and Public Relations, which does not qualify as an affidavit, there has not been any response from the government to this petition. This 12-page report of the fact situation in J&K tries to justify the measures with a bland statement that “if these steps had not been taken, there would have been an extremely volatile situation in the valley”.

An affidavit is a statement on oath, which swears by the truthfulness and correctness of it, and hence stands on higher pedestal of credibility. False statements in affidavits can expose the deponent to perjury proceedings. This statement by the secretary, therefore, does not have much weightage for the purpose of determining the constitutionality of the government measures.

Barbed wire is seen laid on a deserted road during restrictions in Srinagar, August 5, 2019. Photo: Reuters/Danish Ismail

Commenting on the reluctance shown by the government to file an affidavit in these matters so far, constitutional law scholar and advocate Gautam Bhatia said:

“The Supreme Court has often said that we live in a culture of justification, where the acts of State must be explained and justified to citizens, and especially to those whose lives they impact. This is particularly important where rights have been infringed, because it is necessary for the government’s justification to be tested by a court of law. By failing to put its reasons on record, the government is stymying constitutional accountability. The court should not indulge it any further”.

On September 16, the Court had directed the Centre and the state of J&K, to file their ‘respective affidavits’ to the petitions. But today, the Court did not venture to ask the government about its affidavit, before referring the matters to the constitution bench. Even the reports about an earthquake hitting the region earlier this week did not stir the Court to probe the government about the need for continuing the communication blockade.

In the constitutional challenge to the Presidents Orders issued on August 5 and 6 under Article 370 and to the J&K Reorganisation Act, the Centre is yet to come up with its affidavit. The petitions were admitted and referred to constitution bench, a month ago, on August 28.

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The constitution bench is set to commence the hearing from tomorrow in these matters. Suhrith Parthasarathy, advocate of Madras high court and commentator on constitutional matters, expressed apprehension about the hearing being delayed due to the failure of the government to file its response. Pointing out the contrast between the response of the Supreme Court of India and that of the UK Supreme Court to contemporary constitutional issues, he said:

“It would be disappointing if the hearing is delayed on this ground. We’ve just seen the swiftness with which the UK Supreme Court has delivered a ruling on a hugely important issue (legality of prorogation of UK Parliament by prime minister Boris Johnson). If the government believes its decision on Article 370 is justified then it should be able to justify it on the basis of an expeditiously filed response.

It’s even more shocking that there has been no response filed to the various habeas corpus petitions. In the process, the very essence of habeas corpus has been lost.”

In the habeas petition filed by CPI(M) general secretary Sitaram Yechury for release of former J&K MLA M.Y. Tarigami, there has been no response by the Centre.

On September 16, the Court adjourned the hearing of the case by saying “the writ petition is kept open for a decision on the validity of the alleged detention of the petitioner claimed to be without any authority of law with effect from 05.08.2019”.

Today, the matter was referred to constitution bench, and the reasons of the detention, stated to have been in force since August 5, are yet to be disclosed.

This article originally appeared on LiveLaw and has been republished with permission.