The verdict of the nine-judge constitutional bench of the Supreme Court on Right to Privacy is being taken well across India but it has created apprehensions among the people in Jammu Kashmir with Article 35-A already pitting both the Hurriyat as well as mainstream parties against New Delhi.
Soon after the apex court’s judgement that privacy is a fundamental right under the Constitution of India, legal and political circles in Kashmir were keenly reading the verdict to see if it would impact the controversial Article 35-A, draconian Armed Forces Special Powers Act (AFSPA) and the Cordon and Search Operations (CASO) of troops, paramilitary forces and police in Kashmir.
The Supreme Court is also hearing a petition challenging Article 35-A of the constitution that had been filed in the court by a little-known RSS-backed think-tank ‘Jammu Kashmir Study Centre’.
The petition calls for abrogation of Article 35-A, a constitutional provision that defines special privileges enjoyed by permanent residents of Jammu Kashmir in matters related to employment, acquisition of immovable property, settlements and scholarships while Article 370 accords a special autonomous status to the State.
The nine-judge constitution bench of the Supreme Court held, “A person’s freedom to choose the place of his residence once again is a part of his right of privacy recognised by the Constitution of India under Article 19 (1) (e) though the predominant purpose of enumerating the above mentioned two freedoms in Article 19 (1) is to disable both the federal and State governments from creating barriers which are incompatible with the federal nature of our country and its Constitution.”
This has created apprehensions in the legal and political circles in Kashmir that the judgment referring to “is to disable both the federal and State governments from creating barriers which are incompatible with the federal nature of our country and its Constitution” might be used for abrogating Article 35 A.
However, noted Kashmiri lawyer and a legal luminary, Zaffar Shah said, “Under the constitution we have a different relation with the Union and it is that reaction which is in question. I would assume that the special position that the State has under the constitution will also have to be upheld.”
The legal and political circles were also discussing the impact the judgement would have on COSA, which involves troops, paramilitary forces and police going door-to-door while invading the privacy of the people and on the draconian AFSPA, which gives troops powers to detain and eliminate anyone suspecting them to be militants without the fear of prosecution, blow up houses and carry arbitrary arrests.
The nine-judge constitutional bench SC verdict said, “I do not think that anybody in this country would like to have the officers of the State intruding into their homes or private property at will or soldiers quartered in their houses without their consent.”
However, Shah said the judgement would not impact AFSPA and COSA as the troops were breaching the privacy of the individuals under the law.
“When the parliament itself authorities it, then that act has a sanction of the law,” he said. “Privacy is different and applies where people would not volunteer but not where offence is committed and in that case, it is the law that determines the extent of the law.”
Shah said the Supreme Court on the one hand had upheld the Right of Privacy but on the other hand its impact on laws, which allow transgression into privacy, would require to be examined.
The unified Hurriyat leadership led by Syed Ali Geelani, Mirwaiz Umar Farooq and Muhammad Yasin Malik has already announced a shutdown call on August 29 against the alleged attempts being made to abrogate Article 35-A.
The mainstream political parties including the opposition National Conference (NC) and ruling Peoples Democratic Party (PDP) have both raised alarm over the attempts of abrogating Article 35-A.
Opposition NC Working President and former chief minister, Omar Abdullah had questioned the ‘sinister designs’ of the rightwing Bharatiya Janata Party (BJP) led government at New Delhi saying, “It (special status) is not specific to Jammu Kashmir as many other states too have unique laws and people who are today talking about one India need to be asked to remove all these laws in these states first.”
Earlier, PDP President and Chief Minister Mehbooba Mufti had warned New Delhi against tinkering with Article 35-A.
“If Article 35-A is tinkered with, no one, neither NC nor PDP, who hold the national flag in Kashmir despite risks, and despite attacks on our workers, will be left to hold that,” she had said.
The Thursday’s decision of the Supreme Court was pronounced by the nine judges including Chief Justice of India J S Khehar, justices Jasti Chelameswar, S A Bobde, R K Agarwal, Rohinton Nariman, A M Sapre, D Y Chandrachud, S K Kaul and S Abdul Nazeer.
The judgement read: “Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended.”
Will Supreme Court verdict have bearing on Article 35A, AFSPA, CASO?
