Archive for kashmir

Erosion of the Right to Freedom in Kashmir: How India Violated Established Principles of Constitutional and International Law

Guest Contributor Bhaskar Kumar is a 3rd year student at National Law School of India University, Bangalore. His areas of interest include criminal justice, human rights, constitutionalism and international law. He writes for a number of platforms including law review blogs and media platforms like The Hindu, Live law JILS-NUJS etc.

In anticipation of unrest after altering the special constitutional status of the state of Jammu and Kashmir, the Indian government detained several political leaders and imposed a broad restriction on freedom of movement and press in August 2019.  

These restrictions were imposed in the aftermath of abolishing article 370 of Indian Constitution. This article was part of the Constitution of India which provided special status to the state of Jammu and Kashmir. By virtue of this article, the people of Jammu and Kashmir used to enjoy some privileges including exclusive property rights. 

The government justified this amendment by considering it a step that ensures the complete integration of the state into the Union of India and to have better control over the territory in order to curb terrorist activities allegedly taking place there.

By imposing section 144 of Criminal Procedure code (1973), the government banned public meetings and shut down the internet and phone services completely which consequently disrupted news and information services. With this step, the government of India has violated the right of freedom guaranteed under article 19 of Indian constitution which protects citizens’ right to freedom of movement, assemble peacefully without arms and press until and unless security of state, sovereignty or interests of the general public is at stake. When such concerns are at stake the government might impose reasonable restrictions over enjoyment of these rights.

In the present case, however, the measures taken by the government of India cannot be said to put reasonable restrictions on the enjoyment of these rights in light of numerous judgments delivered by the apex court. In Indian Express Newspapers v Union of India(1985) 1 SCC 641, the Supreme Court held that freedom of press is crucial to communicate facts and opinions which educate people about political establishments and hence, there cannot be any interference with that freedom in the name of public interest. In the present scenario, due to imposition of restrictions, newspapers are not able to operate or circulate their services. This amounts to an infringement of the right to freedom of expression.

While stressing the importance of the freedom of the press, the Apex court in Dinesh Trivedi v Union of India held that citizens have the right to know about government decisions and actions. But citizens can only know government’s decisions and restrictions when they have access to media sources. In Sakal papers pvt. ltd. v Union of India the Supreme Court observed that the right to freedom of speech entails the right to circulate one’s views to all whom one can reach and care to reach and courts must be vigilant of any kind of restriction over such circulation of views in order to preserve the democratic ethos. 

Due to the imposition of a curfew in Kashmir and the presence of a large number of military personnel, it is impossible for a journalist to cover the news about the prevailing conditions due to imposition of section 144 CrPC. According to its managing editor, the Kashmir Times, a leading newspaper of state, has only been able to publish a minute version of its editions because of restrictions. The imposition of section 144 has made it almost impossible for journalists to carry on their duties.


In Babulal Parate v. State of Maharashtra the apex court ruled that section 144 of CrPC can only be imposed when there is an actual prominent threat endangering public order and tranquility which has not been ensured by government before imposing the curfew. The Internet has also been shut down and the circulation of information has been impossible because of this. The Government of India has ruthlessly interfered with the freedom of press and information. The mandate of article 19 doesn’t give the unbridled power to governments to impose restriction merely on the grounds of speculation and anticipation. The reasonable restrictions on fundamental rights cannot be of such disproportionate nature that they extinguish the right itself. The Indian government has failed to justify the nexus between potential terrorist threats and internet and media shut down for an unreasonably long period of time, as there is no indication of any kind of threat to public tranquility in the  present case.

Looking at the situation from the perspective of international humanitarian law, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) ,which has been signed and ratified by India, requires that the government protect the right to freedom of expression and Information. According to a resolution passed in 2012, the UNHRC affirmed that right to information applied online as well. Article 19(2) of the ICCPR mandates that everyone “shall  have right to freedom of expression and this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art or through any other media of his choice”. As per article 19(3) of ICCPR, the right to freedom of expression and information can only be restricted on the conditions that they are done so by law and are necessary for respecting the rights of others and to protect the national security or public order.

In the present case, the aspect of necessity has severely been overlooked. As discussed earlier, there was no substance to show that there was in fact a threat to national security and public order. The respect of modern communication channels–particularly the internet–is very important for a democratic country. As an interactive medium, the Internet opens up new possibilities for communication and is accordingly relevant for the theory of democracy. It ensures participation by forming audiences and opposing audiences and enhances the possibilities for political information, deliberation and participation. No other medium facilitates the communication between state and citizen to the extent that the internet does.  Research on the importance of the internet for civil society groups shows that net-based communication is  key for the organization of transnational protests and solidarity in particular. Even though some studies have pointed out that online content is relatively conventional and little use is being made of the interactive potential inherent to the technology, this form of communication remains. In Ahmed Yildirim v. Turkey the European Court of Human Rights held that the access to media platforms is an indispensable tool for exercising the right to freedom.

The recent steps taken by Indian government in Kashmir constitute serious violations of principles enshrined in the constitution of India and international covenants signed and ratified by India. However, the government has not responded to the questions raised by media and civil society in this regard. Last month a delegation from European Union visited Srinagar, (the capital of Jammu and Kashmir) to have a first-hand understanding of situation. The visit was diplomatically important as the government’s move was criticized internationally by lawmakers. However, the visit was unofficial and there was no intention on the part of delegates to submit the report to European Union.

The Indian government should not have unbridled power to curtail the fundamental rights of its citizens. Constraints imposed on media and the internet must therefore be removed as soon as possible and citizens should continue to enjoy their freedom of speech.

The Kashmir Issue: How “Miller (2)” Must Inspire the Indian Supreme Court

By guest contributors Anmol Jain and Prannv Dhawan. Jain is  a penultimate-year law student at National Law University, Jodhpur, India. He takes an active interest in the study of constitutional law and judicial approaches to human rights. Dhawan is a third-year law student at National Law School of India University, Bangalore, India. He is interested in policy and legal research in the domains of public law, human rights and climate justice. 

India’s constitutional democracy is backsliding. Speaking at a rally during the ‘National Register of Citizens (NRC) Seminar’ recently, the Home Minister advocated for the re-introduction of the much contentious Citizenship Amendment Bill, which unconstitutionally aims to provide easier citizenship requirements for non-Muslim refugees. Noted scholars have argued that previously, the National Register of Citizens exercised in Assam and now, the dilution of Article 370 of the Constitution that provides special status to the state of Jammu and Kashmir, are arguably unconstitutional attempts to further the political vendetta of the ruling party which has the capability to downgrade the credentials of Indian federal and democratic ideals. Amid global critique of the functioning of the executive branch in India, the latest coming from the Bar Council and Bar Human Rights Committee of England and Wales, United Nations and the United States Senate Committee on Foreign Relations, the attitude of the Supreme Court towards the Executive excesses has also come under the radar (see here, here, here and here). We attempt to analyse it hereunder by specifically focusing on the Jammu and Kashmir issue pertaining to dilution of Article 370.  

To briefly comment on this provision, Article 370 prescribed a special status to the state of Jammu and Kashmir by limiting direct application of the Indian Constitution to the State. Provisions of the Indian Constitution could be applied only through Presidential Orders issued upon the concurrence of the State Government. It further provided that the President may cease or modify the operation of Article 370 after taking recommendations from the Constituent Assembly of the State. On August 5, 2019 a Presidential Order was passed which inserted an additional clause in Article 367, a provision that guides the interpretation of the Constitution, to indirectly amend Article 370. It stated that the expression ‘Constituent Assembly of the State’ used in Article 370, must be read as ‘Legislative Assembly of the State’. Given the fact that the state was functioning under President’s rule through the Centre-appointed Governor at the relevant time, indicating the absence of a legislative body, it became a butterwalk for the Central Government then to modify Article 370 to such an extent that it virtually dilutes it. 

Many petitions have been filed in the Supreme Court challenging this dilution. This issue involves the determination of limits on the Executive functions in India, which is presently functioning in an ultra-strong manner with a combined strength of the whip. It involves the question of constitutional federalism and the survival of India’s democracy as envisaged by our founding fathers. Understandably, nothing could be more important in the existing backlog of the Supreme Court than securing the identity of our Constitution, which promises to India citizens and the state governments a Government limited by the Rule of Law and ideals of federalism, respectively. However, while hearing the matter on September 30th, the Supreme Court hearing was delayed, with representatives noting: ‘We do not have time to hear so many matters. We have a Constitution bench case (Ayodhya dispute) to hear.’ 

The issue of backlog in the Supreme Court of India isn’t new – it has been continuing for many years (for a more detailed discussion, see here). Given that the Court today is suffering from a high backlog of cases, an agenda of judicial reforms, as Justice Chandrachud recently articulated, must include the proposal to reduce the high number of appeals of civil or criminal suits and to streamline special leave jurisdiction. Another option for reducing the caseload burden could also be, as is continuously being emphasized by the Vice President, the establishment of multiple benches of the Supreme Court in different regions in India. However, despite the way in which this manifests, under no circumstances can the Supreme Court continue to be excused from efficaciously fulfilling its constitutional responsibility to hear all cases that come before it.

When the Kashmir petitions were placed before a Constitution bench on October 1, the Court again failed to adequately fulfil its role as the protector of liberty by further delaying the hearing. In addition to this, if the bizarre habeas corpus orders, as critically analyzed elsewhere, in September is anything to go by, the Supreme Court has uncritically accepted the Government’s disproportionate claims about national security that seem to have taken precedence over the ideals of civil liberties. The idea of a nation represented by a focus point – dilution of Article 370 to achieve greater unity, as claimed by the Central Government – has overpowered the individual dignity and identity of its constituents, which marks a move from a democratic government set-up towards right-wing populism. Such judicial evasion in the guise of national security in these crucial cases of rights abuses has been criticized by constitutional commentators by juxtaposing it with the United Kingdom Supreme Court’s swift adjudication in R (on the application of Miller) v. The Prime Minister [“Miller (2)”], a case involving breach of constitutional procedures and principles in the prorogation of the Parliament.

The Indian Supreme Court’s core constitutional role is to protect the fundamental rights of  citizens. The efficacious hearing and adjudication of the petitions against civil rights restrictions, house arrests, and communications blackouts as well as the constitutionality of the Parliament’s legislation are critical in the current times of constitutional backsliding. Rights’ adjudication ought to be placed on  a higher pedestal than smaller, less crucial issues such as a recent case the Court chose to hear: the determination of legal title in a religiously charged land dispute matter. This is especially relevant at a stage in the Indian constitutional process where safeguarding the rights to dignity and life has been understood to be at the pinnacle of public duties. As has been enunciated in multiple golden triangle cases, these rights are interpreted broadly and for the betterment of Indian citizens. Further, just recently, the Kerala High Court held that even the access to internet is a fundamental right to be protected. 

Although the Supreme Court’s wide jurisdiction and liberal interpretation of its powers creates significant  institutional constraints, this cannot be an alibi for not fulfilling the fundamental constitutional role of the court. If the Court is indeed the most powerful apex judicial body in the world, then it must tirelessly commit itself to secure the civil-political-socio-economic rights in a timely fashion. While the stellar institutional contributions of the Supreme Court to the cause of human rights and citizen’s entitlements cannot be denied, we contend that it is this very expansion of its constitutional role (perhaps self-assumed), that obligates the Court to seriously and appropriately adjudicate on constitutional challenges and petitions that seek its rescue to restore fundamental rights. It is important to acknowledge that delay in justice delivery is an absolute denial of those exact rights. The court’s present cavalier approach to collective punishment of millions of citizens without judicious and comprehensive ascertainment of existence of reasonable grounds based on the doctrine of proportionality is unfortunate and needs to be critiqued, rather than defended. Otherwise, it shall surely create an ironical situation where the ‘most powerful court’ is continuously failing to fulfil its constitutional duties, perhaps under executive influence. 

Earlier this year, the UK Supreme Court upheld the ideals of parliamentary deliberation and accountability of the executive to the Parliament by declaring Boris Johnson’s 5-week prorogation of parliament null. This is similar to the current Indian situation. It would not be wrong to argue that diluting Article 370 at a time when the State of Jammu and Kashmir is functioning under the President’s rule and substituting the views of the Governor with the views of the State Assembly is equally ‘unlawful and thus null and of no effect.’ Any further delay in action by the Supreme Court comes with a high possibility of material alteration in the functioning of Jammu and Kashmir under the amended scheme of the Constitution, the reversal of which, if the Court decides so, might bear heavy costs.  

Demonstration of the Court’s independent strength is not only lacking in the realm of highly staked political matters, but it also extends to judicial appointments as well, as witnessed in the recent controversies involving Justice Akil Kureshi and Justice Tahilramani. Commenting on the manner in which the Supreme Court has handled the petitions arising out of the recent controversy involving Article 370 of the Constitution, the state of Jammu and Kashmir and its special status, constitutional commentator Gautam Bhatia has argued that an emergency-era weak judiciary has reappeared, though in a different form this time, which has failed the fundamental principles of Indian constitutional democracy. 

In a recent judgment in Supreme Court Advocates-on-Record Association v. Union of India (2015), the Supreme Court highlighted the virtues of judicial independence and held that it is a part of the basic structure of the Indian Constitution,  again highlighted at another time soon after. Concerns regarding isolating the judicial body from the other organs of the Government have been institutionally studied by the International Commission of Jurists and under multiple international documents. However, the Supreme Court of India seems to have taken a blind eye towards itself even while it advocates internationally for  recognized jurisprudence of courts elsewhere.  

In the times when the Executive’s imposition of an information blackout and civil rights restrictions in Kashmir have continued for over 60 days and  blatantly unconstitutional legislations like the Citizenship (Amendment) Bill are sought to be passed,  the judiciary must rise to the desired standards and stand as an independent protector of the Constitution. We believe that the wide jurisdiction and the high number of cases that the Court handles weakens it. It is not impossible to achieve more balance; it has been done in the past. Justice H.R. Khanna, for example, is a judge who stood undaunted and ruled against executive excesses to uphold constitutional promise in their cases. The time has come that the present Court proves it is indeed the Constitution’s sentinel on the qui vive.

On Constitutional Morality: Thoughts from Delhi

Guest Contributor: Anmol Mittal is a 5th Year Student at National Law University, Delhi. 

The question of what the true import of the term “Constitutional morality” is has become pertinent following India’s (Application to Jammu and Kashmir) Presidential Order C.O. 272, and the subsequent State Reorganisation Bill introduced in the parliament. On the morning of August 5, through a combination of the Presidential order and the Reorganisation bill, the special status accorded to the State of Jammu & Kashmir, by way of Article 370, within the Indian Union, was revoked. To examine where the moral compass of India’s Constituent document lies, it’s necessary that the Constitution be considered as a ‘whole’, and not as being contained ‘essentially’ in Part-III on Fundamental Rights (Part-III rights). 

For the uninitiated, Part-III rights are, in a manner of speaking, India’s version of the bundle of rights in America guaranteed through the 1st, 5th, 6th amendments and so on. Article 19 corresponds directly with the 1st Amendment, Article 20 with the 5th Amendment, and the 6th Amendment has, in a manner of speaking, read into Article 21 and so on. Through a series of constitutional decisions, the Supreme Court of India has placed Part-III rights in the ‘infallible’ category–i.e. they cannot be amended to the ‘disadvantage’ of the holders of these rights. The legislative body is disempowered insofar as it’s amending authority is inhibited at the infallible category, a principle better understood in India as the “Basic Structure Doctrine”. This is, by no means, a mean feat. As Senior Advocate Arvind Datar notes in Courtroom Genius, no other country following a Westminister-type parliamentary democracy had ever had a legislation duly passed by Parliament struck down on grounds of fundamental rights violation. Kesavananda Bharati case, the genesis of such doctrine, really was an outlier. 

The seal of the constituent assembly of India

India, like various other countries with a protracted anti-colonial struggle, places its Constitution and the decisions of its Constituent Assembly as central in determining the validity of actions of present day government. While this in itself is hardly unusual, it is the political value that the Indian government still attaches to the Constitution that sets it apart from other nations. Seldom will one find instances in India of blatant disregard of the Constitution from members of the Executive branch of Government. On either side of the political divide, therefore, it is pertinent to understand India’s Constitution as a ‘whole’, and to not obfuscate the myriad considerations that the Constituent Assembly had in its mind when finalizing it in 1949. 

When drafting the Constitution, India’s Constituent Assembly must have been, as a matter of presumption, truly aware and cognizant of the implications of including Art. 358-359 in the Constitution. Specifically, Article 359, which states that: 

the right to move any court for the enforcement of such of [the right conferred by Part III (Except Art. 20 & 21)] as may be mentioned in the order……remain suspended for the duration for which the proclamation is in force”.

The presence of ‘Emergency Provisions’ under Art. 352 and its enabling provisions in Art. 358-359 suggest that the Constituent Assembly and its conception of a ‘Constitutional Morality’ considered a ‘threat’ to the Security of India as a bigger ‘emergency’ than the suspension of fundamental rights in mounting an effective counter to such a threat. If the converse, which is to say that the constituent assembly in its wisdom was convinced that Part-III rights would, by law, never be suspended from operation the correct position according to the Constituent Assembly, the text of the Constitution would not have so expressly contravened it. 

The only condition for suspension of Part-III rights is that there be a Proclamation of ‘Grave Emergency’ under Art. 352 by the President. This would be enough grounds to activate Art. 358, which automatically suspends all fundamental freedoms under Art. 19, such as speech, movement or even trade. Further, Art. 359 empowers the Government to, by issuing a Presidential Order, suspend the ‘enforcement’ of all other fundamental rights under Part-III.  

In Attorney General for India vs. Amratlal Prajivandas and Others, a nine-judge bench ruled on the extent of the President’s powers during a Proclamation of emergency under Art. 359. The Supreme Court, stating the view of the Constituent Assembly, held that the President was not clothed with the power to suspend fundamental rights but only their enforcement. This implied that while in theory fundamental rights exist, their judicial protection is suspended for the duration of the emergency. Essentially, writ jurisdiction, which enables anyone to move the court under Articles 32 & 226 for enforcement of their Part-III rights is suspended, except in cases where Fundamental Rights under Art. 20 & 21 are claimed to be violated, i.e. protections with respect to Convictions, such as the Right to Self-Incrimination, and the Right to Life. 

Therefore, all that the constitution requires to set in motion the suspension of generally revered Part-III rights is the meeting-of-minds of members of the Cabinet (The only time the word ‘Cabinet’ is used in the Constitution) and the communication of the same to the President, an exercise of purely executive power with no legislative approval. The provisions, after the Indian experience with the Emergency under PM Indira Gandhi, were tweaked to strengthen them by requiring the communication of such meeting-of-minds in writing. The grounds for the judgment of the Cabinet that security is under threat earlier included even ‘internal disturbances’, which was removed to limit the 3 grounds to War, External Aggression and Armed Rebellion. 

The import of Art.358-359 is further muddled following the Maneka Gandhi judgment. A 7 judge-bench laid to rest the AK Gopalan theory, that each Article in Part-III guarantees a distinguishable right, and each right is contained wholly in separate silos, with no overlap amongst each other. The Court disagreed with Gopalan, and constructed fundamental rights as being protected through overlapping provisions and not as ‘restricted’ under specific provisions of Part-III: i.e. a right may be guaranteed by and protected under several articles and not exclusively under one. The Right to Privacy, for instance, has been read as both, a part of the Right to Life (Article 21), because it is essential to the enjoyment of life, and also as under Right to Freedom of Expression (Article 19)

Therefore, the extent to which Part-III rights will be suspended (or not) during a proclamation under Art. 352 is subject to the minds in Bhagwan Das Road (The seat of the Indian Supreme Court) demarcating the extent to which a right falls under Art. 19 and not 20 & 21. This indicates a reversal to the ‘restricted’ conception of Fundamental rights as under Gopalan in order to safeguard their exercise, and also leaves to judicial discretion issues ill-suited for adjudication during an Emergency.

In effect, for a government exercising complete (‘Single’) majority in the Parliament, legislative approval for the passage of a bill, after the proclamation of an emergency and suspension of Fundamental rights, is only a matter of procedure. Freedom to speak and question the government in Parliament is the protection, in essence, that the Constitution ensures for our democracy. However, once these two parameters are met and the single ruling party has passed a bill, a 6-month suspension period follows before requiring legislative scrutiny again. 

Two conclusions can be drawn. One: ‘Constitutional Morality’ and ‘enforcement of Part-III rights’ are two separate spirits in the Indian Constitution, with the former comprising more than just the latter. As a result, it cannot be claimed that actions taken in violation of Part III rights invariably violate ‘Constitutional Morality’. Two: the suspension of Part-III rights can be considered violative of ‘Constitutional Morality’ only in cases where the prescribed ‘Constitutional process’ is violated. In other words, the essence of Part-III rights is contained not only in their substance, but also in the processes required to render them (un)enforceable. 

Seen in light to the developments in Kashmir, to criticise the media blackout and the militarisation of the valley only on grounds of the violation of the substance of Part-III may not be the same as stating that the actions undertaken are beyond ‘Constitutional Morality’. Emphasis needs to be added to the procedures which are required in order to ensure that Part-III rights are not suspended arbitrarily. It is the political cost of having to declare an ‘emergency’ to meet the Arbitrariness requirement and igniting the collective paranoia of Indians left over by Indira Gandhi which is crucial to any meaningful opposition to the actions of August 5 on grounds of ‘Constitutional Morality’.