- Some citizens are bound to suffer in a curfew-like situation, a Supreme Court bench said on Thursday
- Appearing for Ghulam Nabi Azad, senior advocate Kapil Sibal told a bench of Justices NV Ramana, R Subhash Reddy and BR Gavai that the Center miserably failed to facilitate Kashmiris’ fundamental rights
NEW DELHI: Some citizens are bound to be inconvenienced in a curfew-like situation, a Supreme Court bench said on Thursday as it heard Congress leader Ghulam Nabi Azad’s petition alleging that the clampdown in J&K post-August 5 resulted in denial of fundamental rights to the inhabitants ofKashmirValley as a whole.
Appearing for Azad , senior advocateKapil Sibaltold a bench of Justices NV Ramana, R Subhash Reddy and BR Gavai that the Center miserably failed to facilitate Kashmiris’ fundamental rights while enforcing complete clampdown in the Valley after its August 5 decision to scrap special status to J&K and dividing the state into two Union Territories.
Sibal said while the government has the power to impose restrictions on citizens to maintain law and order but at the same time, it must facilitate the citizens to enjoy their fundamental rights to communicate, travel, approach hospital, carry on with their profession, attend schools etc.
“They ( the government) thought that there will be a reaction to their (August 5) decision, so decided to suppress the reaction with the whole might of the state. But in the process, it forgot that every power comes coupled with a duty. This type of exercise of power will destroy functional democracy, ”Sibal said.
With the senior advocate saying that it was impossible for Kashmiris to communicate with their wards studying or working outside the state and that they found it difficult to go to hospitals, Justice Gavai said, “In a situation like this, there is bound to be some difficulty for citizens . In any curfew situation, some citizens are bound to suffer. ”
Sibal said some suffering for a small period of time was understandable but a complete clampdown for more than two months could never be justified.
He triggered a strong objection from the Center’s counsel Rajat Nair for his “when I leave the territory of India and enter the territory of Jammu and Kashmir …” phrasing. Nair emphasized that J&K was an integral part of India.
Arguing against the curbs imposed in J&K, Sibal said, “Mere apprehension (of the government) that something might happen cannot be a justification for throttling speech and communication links. There has to be cogent evidence to back such exercise of power. They must tell the court, not through sealed cover, what were the compelling reasons to impose such unprecedented clampdown on the Kashmiris. Taking such measures against certain troublemakers is justifiable. But to bracket the entire population of a state as troublemakers to stifle their fundamental rights cannot be justified. ”
He said Azad was stopped twice from entering his home state. “The reason given was that it would create a law and order situation. He traveled in the state for five days after getting permission from the Supreme Court. It did not create any law and order situation. Why would the government impede Azad’s fundamental right to engage in his profession that involves meeting the people and understanding their problems? ”He asked.
The senior advocate said apple traders were the worst affected because of the clampdown as their produce suffered massive damage. “The state suffered Rs 10, 000 crore economic loss because of the clampdown, ”he said, prompting the court to ask whether the facts narrated by Sibal were taken from the ground or from media reports? Sibal conceded that when the communication link was disrupted, he had to rely on media reports. “The onus is on the government to justify its action with cogent reasons, none of which was given in the notification dilutingArticle 370, ”he said.
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