Curbs in Kashmir: There has to be balance between personal liberty & national security

There has to be a balance between personal liberty of an individual and national security, the Supreme Court said Tuesday while hearing the pleas that have raised issue of curbs in the Kashmir Valley after the abrogation of provision of Article 370.

The top court’s remarks came after the Jammu and Kashmir administration said that 100 per cent landlines are working in the Valley and their is no restriction on he movement of people during the day time.

Solicitor General Tushar Mehta, appearing for J&K administration, told a bench headed by Justice N V 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 their was complete lockdown of communication networks and restrictions on movement of journalists.

The bench, also comprising justices R Subhash Reddy and B R Gavai, sought response from Centre and asked the petitioners to file their rejoinder and listed the matter in the second week of November.

“There has to be a balance between personal liberty of a person and the national security,” the bench said while dealing with a batch of nine petitions pertaining to restrictions in the Valley.

At the outset, the top court dealing with the petition of CPI(M) general secretary Sitaram Yechury said that it was 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 — Mohd 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 want that either the detention of Tarigami be declared illegal or the authority be asked to justify his detention after August 5.

To this, the bench said that Jammu and Kashmir High Court is functioning smoothly and the petitioner can approach there 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 filing of any fresh intervention application in the issue related to restriction imposed in the valley.

Mehta questioned the locus of Poonawalla and said that he is a “TV personnality and not the resident of the state”.

To this, Justice Gavai apparently referring to Judge B H 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 August 5 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.

Supreme Court seeks report from J&K High Court on claims about people being unable to approach court

Terming as “very very serious” the claim that people are finding it difficult to approach the Jammu and Kashmir High Court, the Supreme Court Monday decided to verify it by asking the Chief Justice there to “forthwith” submit a report in this regard.

“If you are saying so, we are bound to take serious note of it. Tell us why it is very difficult for people to approach the high court. Is anybody stopping the people from going to high court? Then it is a very very serious issue,” a bench headed by Chief Justice of India (CJI) Ranjan Gogoi said.

“We will verify this”, the bench, which also comprised justices S A Bobde and S A Nazeer, said after senior advocate Huzefa Ahmadi appearing for two child rights activists claimed that it is very difficult for the people in the state to access the high court there.

The CJI said he would himself visit Srinagar, if required, and he would also speak to the chief justice of high court about this.

“It is stated by Huzefa Ahmadi, senior counsel for the petitioners, that access to the high court of Jammu and Kashmir is seriously affected by the present situation in the state. We request the chief justice of the high court to submit a report on the above issue forthwith,” the bench noted in its order.

Taking note of Ahmadi’s submissions, the CJI said: “You are saying that you cannot go to the high court. We have called for a report from Chief Justice of the high court. If required, I will myself go there.”

He further said: “We must know if there is denial of access to justice. I will personally talk to the chief justice of the high court after this matter is over because what you have said is very very serious thing.”

The bench warned however that if the allegations are found to be incorrect then the petitioners should be ready to face the consequences.

The apex court was considering a public interest litigation (PIL) seeking the apex court’s intervention on the issue of detention of children in Kashmir.

During the hearing, the bench referred to the prayer made in the petition and said that petitioners have themselves said that children be produced before the juvenile justice committee of the high court.

“You yourself are saying that you want this exercise to be done under the aegis of the juvenile justice committee of the high court. Then why do not you go to the high court,” the bench said.

Ahmadi, however, said it is very difficult to approach the high court in the state.

Solicitor General Tushar Mehta, appearing for Jammu and Kashmir, told the bench that all the courts in the state are functioning and even the Lok Adalats have been conducted there.

When Mehta said that he wanted to make statement in the court on the issue, the bench said, “We do not want anybody to make any statement. We will look into it. If people are not able to approach the high court, then we will have to look into it.”

The petition has been filed by child rights activists Enakshi Ganguly and Professor Shanta Sinha against the alleged illegal detention of children in Jammu and Kashmir in the wake of revocation of Article 370 and bifurcation of state.

The plea has contended that all persons below the age of 18 years who have been detained be identified through an age census.

Seeking directions that illegally detained children be produced before the Juvenile Justice Committee of the high court, the plea has also sought compensation from them.

Jammu & Kashmir High Court disposing off Cases daily since Aug 5, says Spokesperson

On Thursday, J-K High Court refuted a media report published on Aug 27 which stated that the Court is not functioning smoothly.
“The news report of newspaper is totally baseless as the High Court is functioning normally & the cases are being heard & disposed off regularly,” the spokesperson of Jammu & Kashmir High Court said according to an official release.
The spokesperson said that 71 main cases have been disposed off on merits in Srinagar wing of the High Court between Aug 5 & 23.
“From Aug 5, 2019 till Aug, 23 2019, 71 main cases have been disposed of on merits in Srinagar wing of the High Court, out of which 6 main cases have been decided on merits by the Division Bench, whereas 65 main cases have been disposed off on merits by the Single Benches by passing detailed judgments including the ones relating to selection of KAS & Sub – Inspectors of Police,” he said.
“In Jammu wing of the High Court, 312 cases were decided by the Division Bench & 243 cases were decided by the Single Benches during the same period,” he added.
The court spokesperson said that the working in Subordinate Courts also went on smoothly & disposed off a total of around 10,000 (ten thousand) cases were during the period.
“Besides this, the registration of document by Sub – Registrars of the State & issuance of certified copies & other administrative functioning of the High Court as well as Subordinate Courts went on smoothly during the aforesaid period. The employees of the High Court are also performing their duties with dedication,” he said.

Remember your bond, solve dispute amicably: Delhi HC to sisters

Remember your bond, solve dispute amicably: Delhi HC to sisters
Remember your bond, solve dispute amicably: Delhi HC to sisters

“Sisters never fight” was the counsel of the Delhi High Court to two siblings embroiled in 25-year-old property dispute as the judges took them down the memory lane reminding them of their bond and asked them to resolve the issue amicably.

Asking the sisters to “build a bridge of trust”, the bench sent the matter to the mediation centre for settlement.

It observed that assets and properties were not worth fighting for and family ties were important.

“Sisters never fight…. We think it proper that the two sisters should forget their immediate past and remember early days of their lives when they used to stay together in the same family and try to solve the issue,” a bench of Justices B D Ahmed and Ashutosh Kumar said .

Justice Ahmed, who has been elevated as Chief Justice of Jammu and Kashmir High Court and was given a farewell today from here, said “I wish I had more time and could sit and solve it.”

The court also observed that the two sisters, who were present during the hearing, were mature enough and wondered why they have been fighting.

“They are sisters and have the same DNA. Why don’t they solve it. They should at least sit and give it a try. At some point of time you would have felt like sisters. You have grown up in the same family,” the bench said and asked the two women to appear before the Delhi High Court mediation centre on March 31.

The court was hearing an appeal filed by one of the sisters against a single judge’s order in the dispute between them over a property which their mother had willed in favour of the other.

The elder sister said that their parents never wanted this dispute to happen and wanted her to look after her younger sibling but somehow things did not work out.

( Source – PTI )

Jammu and Kashmir HC quashes J-K’s order on weeding out so called ‘deadwood’

Jammu and Kashmir HC quashes J-K's order on weeding out so called 'deadwood'
Jammu and Kashmir HC quashes J-K’s order on weeding out so called ‘deadwood’

In a setback to the state government, Jammu and Kashmir High Court has quashed its order of compulsory retirement of six officials under its policy of weeding out the so called “deadwood”.

Justice Alok Aradhe set aside the June order of compulsorily retirement and directed the state to reinstate the petitioners and award all consequential benefits, within a period of one month.

Justice Aradhe delivered the verdict yesterday after hearing a battery of lawyers who had argued for the petitioners yesterday, whereas Senior Additional Advocate General (AAG) Seema Shekhar appeared for the state.

As many as 29 petitions were listed and six were heard at length and decided by the court which quashed the government’s compulsorily retirement order of the employees.

( Source – PTI )

Appoint panel to scrutinise government hospitals : SC to JK HC

jammu-and-kashmir-high-courtThe Supreme Court has asked the Jammu and Kashmir High Court to appoint a panel of experts to scrutinise the conditions in government hospitals in the state.

A bench of Chief Justice T S Thakur and Justices A M Khanwilkar and D Y Chandrachud, said the High Court would be at liberty to constitute a committee of medical experts and administrators, which would submit its report on various aspects including infrastructure, staffs, hygiene and availability of medicines at the hospitals.

“We would commend to the High Court the need for constituting a committee of experts to scrutinise the conditions in public-government hospitals in the state. The High Court would be at liberty to constitute a committee of medical experts and administrators.

“The Committee shall submit a report on the state of public-government hospitals in the state…”, the bench said.

The court directed the High Court to scrutinise this report and after hearing relevant stakeholders including the state government, it could issue appropriate directions and ensure compliance of the orders.

“The hospitals which are conducted by the state and by public agencies cater to medical needs of the poorest strata of society. The need for ensuring proper medical care of a requisite standard has to be duly addressed,” the apex court said.

The apex court verdict came on an appeal filed by the state government against the High Court order which prohibited the government doctors from private practice or engaging in self-employment.

Jammu and Kashmir government contended before the apex court that the High Court had passed the “blanket direction” erroneously on the basis that a government circular with regard to restraining teachers from giving tuition classes without prior permission also covered the services of medical practitioners.

The High Court had set aside the circular of August 11, 2005, which was aimed at regulating teachers from private tuition.

The bench, agreed with the contention of state government and said the matter of doctors was not before the High Court and the medical practitioners were governed by separate rules with regard to private practice or self-employment.

Jammu and Kashmir HC directs 3 IAS officers to comply with its directions

Jammu and Kashmir HC directs 3 IAS officers to comply with its directions
Jammu and Kashmir HC directs 3 IAS officers to comply with its directions

Jammu and Kashmir High Court has directed three IAS officers to comply with its orders in a service petition within two weeks or remain personally present on the next date of hearing to explain their defiance of court orders.

Khazir Mohammad Dar, a retired government officer, had filed a contempt petition against the three officials after they did not implement an order of the high court passed on March 14, 2012 directing them to fix Dar’s seniority in view of the services rendered in the Forest Department and pay all the consequential benefits as well.

“Compliance report not filed. Two weeks time granted for filing compliance report. In default, all the respondents will remain personally present and explain as to why till date judgement has not been implemented,” Justice Mohammad Yaqoob Mir said in his order passed on Tuesday.

The officials who have been asked to remain personally present on the next date of hearing, in case of default, include the then Revenue Secretary, Mohammad Afzal Bhat, the then Financial Commissioner Revenue, Arun Kumar and the then Divisional Commissioner, Shailendra Kumar.

Earlier, the state government chose to appeal against the single bench order after nearly three years but the Division Bench of the high court had dismissed the plea.

After that, the government approached the Supreme Court through a Special Leave Petition, which was not admitted by the apex court.

Dar’s case is similar to that of former IPS officer Ashiq Bukhari.

A division bench of the high court on October 26 last year directed the state government to consider seniority of Bukhari as Superintendent of Police from the date he was given charge of the post and induct him into the IPS cadre.

The state government implemented the order in Bukhari’s case within the stipulated time and the IPS officer was allowed to rejoin the service for a month as Deputy Inspector General with all monetary benefits paid with retrospective effect.

The next date of hearing is in the third week of November.

( Source – PTI )

Jammu and Kashmir HC refuses to ban pellet guns, cites mob violence in Valley

Jammu and Kashmir HC refuses to ban pellet guns, cites mob violence in Valley
Jammu and Kashmir HC refuses to ban pellet guns, cites mob violence in Valley

Rejecting a plea seeking ban on use of pellet guns in controlling street protests in Kashmir Valley, the Jammu and Kashmir High Court has cited the ground situation and observed that as long as there is violence by unruly mobs, use of force is inevitable.

A bench comprising Chief Justice N Paul Vasanthakumar and Justice Ali Mohammad Magrey also declined the plea to prosecute the officers who ordered use of pellet guns or fired them even as it directed the authorities to provide adequate medical treatment to the injured by specialists in or outside the state.

“Having regard to the ground situation prevailing as of now and the fact that Government of India, Ministry of Home Affairs has already constituted a Committee of Experts through its Memorandum dated July 26, 2016 for exploring other alternative to pellet guns….

“Before filing of the report by the Expert Committee and a decision taken at the government level, we are not inclined to prohibit the use of pellet guns in rare and extreme situations,” the court said in its order here yesterday.

The bench was hearing a petition filed by Kashmir High Court Bar Association seeking ban on use of pellet guns for crowd control.

The court said “it is manifest that so long as there is violence by unruly mobs, use of force is inevitable”.

What kind of force has to be used at the relevant point of time or in a given situation or place, has to be decided by the persons in-charge of the place where the attack is happening, it said.

“This court in the writ jurisdiction without any finding rendered by the competent forum/ authority cannot decide as to whether the use of force in particular incident is excessive or not,” the court said.

( Source – PTI )

“More fatalities if pellet guns are banned”

"More fatalities if pellet guns are banned"
“More fatalities if pellet guns are banned”

The CRPF has informed Jammu and Kashmir High Court that if pellet guns are banned as a crowd control measure, its personnel will be forced to fire bullets in extreme situations, which can cause more fatalities.

“In case, this (pellet gun) is withdrawn from the options available with the CRPF, CRPF personnel would have no recourse in extreme situations but to open fire with rifles, which may cause more fatalities,” the CRPF said in an affidavit submitted to the High Court on Wednesday.

The paramilitary force submitted the affidavit in response to a PIL filed before the court, seeking ban on use of pellet guns as a means for crowd control mechanism in the Valley, which has been rocked by violent protests since the killing of Hizbul Mujahideen commander Burhan Wani in an encounter with security forces on July 8.

The force said pellet guns were introduced in 2010 and were an accepted weapon of riot control. It said that following the standard operating procedures while dealing with a dynamic law and order problem is difficult in case of moving, bending and running target.

The SOP regarding use of firearms for crowd control in extreme situations requires that the weapon be aimed below the waist.

“But the situation prevailing on the streets during an ongoing law and order incident is dynamic and mobile.

“In such a situation, sometimes it is difficult to go in for precise aimed fire at a moving, bending and running target,” it said.

The CRPF said it has fired around 3,500 pellet cartridges from July 9 to August 11 during violence by protesters in the Valley.

The PIL was filed by Kashmir High Court Bar Association on July 30.

While the CRPF and BSF have submitted their replies, the state government has not filed its response so far.

The case is listed for hearing tomorrow again.

( Source – PTI )

JK HC stays single bench order on state flag

JK HC stays single bench order on state flag
JK HC stays single bench order on state flag

A division bench of Jammu and Kashmir High Court today stayed a single bench order directing the state government to hoist the state flag on official buildings and vehicles of constitutional authorities.

A petition was moved by National Secretary of BJPFarooq Khan before a division bench of Justices Tashi Rabstan and Bansi Lal Bhat challenging the single bench order passed by Justice Hasnain Masoodi upholding a government circular which asked all constitutional authorities to hoist the state flag atop their official buildings and vehicles.

After hearing arguments, the division bench stayed the order of the single bench.

“After hearing the argument for a long time, the Division bench finally stayed the judgement of single bench,” Sunil Sethi, counsel for the petitioner, told reporters.

A detailed order was awaited.

The development triggered a political storm with former Chief Minister Omar Abdullah attacking Chief Minister Mufti Mohammed Sayeed saying if he cannot defend the state’s dignity and flag from the “nefarious” plans of his ally BJP “he should step down and find someone who can” defend it.

BJP, which is an ally of the PDP, has had a stand of ‘ek vidhan, ek nishan, ek pradhan’ (One Constitution, One Flag, One leader).

( Source – PTI )