• THE SOCIETY FOR CONSTITUTIONAL LAW DISCUSSION

KASHMIR: 1 YEAR OF UNMITIGATED TORMENT


INTRODUCTION

It has been a long time since the government announced a nationwide lockdown in order to curtail the proliferation of COVID-19 pandemic. Many of us are dealing with an unfamiliar stich and have no idea how to put an end to it.Some of us are sitting idle and some are working from home. All kinds of entertainment and events,like the sports industry or thecinema industry have come to a standstill. Most of us have no idea how to resume life post lockdown. We are doing all this to pare down the repercussions of the contagion.But, apart fromall this, there are some people who are no strangers to the lockdown conditions. Kashmiris living in ‘heaven on earth’have been bound to face these strong hell-like restrictions for decades. They have been breathing under appalling circumstances for a while now, not because of a pandemic but astheoutturn of an implausible political tussle between two nations which is beyond their control.

From the time of thede – operationalization of Article 370 which gave Kashmir the right to make its own law and some autonomous powers, Kashmiris have been suffering even though it has been a long12 months. The only thing which the people of Kashmir have gained after the episode is the deployment of armed forces and the curtailment of basic fundamental rights. Moving from one place to another becomes a distant dream in one night. It affects the carrying out of the daily rations of the locals. Since telephone lines and internet were down, the communication was collapsed. All these events created a feeling of panic all over the valley.Although the demarcation of the fundamental rights was the need of the hour, it should have been for a reasonable time. The government should have taken through going steps to reinstate normal life in the valley, but it is still busy in celebrating the masterstroke. According to government data, Kashmir witnessed 1999 stone pelting incidents in 2019 as compared to 1,458 in 2018 and 1,412 in 2017. According to a neoteric report given by the J&K DGP, 240-250 militants are active in the valley, increasing the probability of heightened insurgency activities. This corroborates that the government’s decision backfired, and backlashes were faced by the domiciles.

TRANSGRESSION OF FUNDAMENTAL RIGHTS IN THE VEIL OF SAFEGUARDS

ARTICLE 19

After the move, the Government created an environment of Internet and Communication shutdown all over the valley. The draconian law AFSPA has already been imposed in the State. The people in any other part of the State or Country are not able to know that their relatives in Kashmir are even alive or not. On January 10, 2020, the Apex Court stated that access to the internet is a fundamental right under Article 19 of the Constitution, but the authorities have relented it by setting up government-controlled internet kiosks, with firewalls proscribing social media. Seven months after the shutdown, in March the authorities issued an order directing the restoration of internet services, with certain restrictions. It restricted the speed to 2G. Even after the almost anniversary of the cessation, Kashmiris presently has access only to 2G internet services, which is generating colossal problems and sufferings for people.This violates the principle laid down by the Court stating, “The freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoy constitutional protection”.

In the wake of this pandemic, the people of Kashmir are unable to access important guidelines and latest updates because of the internet speed.A petition was filed before the Apex Court which challenged the Jammu and Kashmir administration’s March 27 order that restricted internet speed at 2G. The petitioner argued that the decision to deprive the people of Kashmir high-speed Internet was violative of Article 14, 19, and 21 of the Constitution. In reply to the petition,The government of Jammu and Kashmir stated that the right to access internet is not a fundamental right and high-speed internet is security jeopardize. They (government) have further submitted that the sovereignty and integrity of India, the security of state or incitement of a misdemeanor, would assuredly warrant truncating the freedom of speech and expression, under Article 19(2). It can be incontestably seen that such an instruction by the government contravenes the right to equality before the law, right to life and liberty, and the right of children to free and compulsory education, granted under Article 14, 19, 21 and 21A of the Constitution. It’s a cinch to interpret that the constitutional principles of proportionality and the need at first glance for alternate expedient will additionally apply in case of internet closedown orders. The three Judges bench headed by Justice N.V. Ramana in the Apex Court averred that“degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what’s actually necessary to combat an emergent situation”.And this restriction in although necessary but is not going on the way in which it was supposed to go. Amidst this Corona Crisis when the entire world is online, a very slow internet will definitely reduce the pace of even justice as submissions are made through video conferencing,and the voice of the counsel is not properly heard by the Judge due to haziness as a result of slow internet connection.


ARTICLE 21

The Government has not only violated Article 19 but Article 21as well. Almost each and every aspect of the personal liberty of the people was violated in the curfew. The procedure which was followed was a clear violation of Maneka Gandhi’s Judgment. People’s right to live with dignity, right to livelihood, right to health, and a lot more rights have been put at stake due to the “One Nation, One Constitution” plan of the Government. Life doesn’t mean living for the sake of living. It must be a dignified life with the freedom to breathe. During this procedure, the people were deprived of even the bare necessities of life such as adequate nutrition, expressing their feeling and mixing and commingling with fellow human beings. The most precious right of a human being, right to education which has got a separate article in the Constitution was clumped down as well.An Association across Jammu and Kashmir, have challenged the government order as being violative of the Right to Education, predominantly since the lockdown for restraining has led to home-bound virtual classes. In the current scenario where the country is dealing with the pandemic, the Internet is a medium of conveying education.It has become significantly difficult for College and University students to access online platforms related to competitive exams and research papers that are primarily designed for 3G and 4G. Jammu and Kashmir government’s demarcations were passed on the belief that there would be “a peril to law and order”. Howbeit, public order is not identical as law and order and neither was at risk when the order was passed. The curtailment was supposedly provisional in nature but lasted over a year now. It must be specific in scope, directing those who may disturb the peace, and cannot be applied widely against the public in the main.

The Right to life is the most fundamental right of all human rights and any decision putting human life at risk must call for the most extensive scrutiny. The framers of the Indian Constitution were aware of the diversity of problems of this vast country and therefore decided to put this fundamental right negatively. The condition is such that the representatives who were put in detention are so traumatized that they deny uttering a single word against the move. There is not a single strong voice against the administration in the State. Thus, the actions which were taken as a precautionary measure relinquished all the canons of natural justice.


CONCLUSION

The government has stated that at the time of Article 370, Kashmir was a “mess”. They had put down the restrictions to ensure that there must be no violence and militancy post abrogation of Article 370. For this, the ambience of the valley after the encounter of Burhan Vani was cited as a precedent. They exercised the authority given under reasonable restrictions on the liberty of Article 19 and Article 21. But the restrictions must be “reasonable”. The restrictions are like that for protecting sheep from the wolf, the former must be lodged in a pen for life. The whole and soul curtailment of fundamental rights for a prolonged period of time is not a solution to ensure normalcy in the valley. The Seclusion of human freedom for protecting them is neither realistic nor beneficial. It would overthrow the very ambition of their protection.

The latter half of 2020 may not witness any unrest. We all are praising the government’s decisions regarding the revocation of Article 370 without seeing the fact that it actually turned the valley into a prison. Albeit the government claimed that there was peace all over the valley after this tendentious act of the revocation but this silence was of the graveyard. It seems that the government does not have any concrete plans to fix what’s broken. They don’t know how to stabilize the region through a candid political procedure. All these incidents that took place in the last 12 months in Kashmir leaveus with a question (What is the cost of lies?)

Author of the piece is Utkarsh Shubham and Shardool Singh of Faculty of Law, University of Allahabad, Prayagraj

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