NEW DELHI – The Supreme Court on Wednesday asked the Centre and the Jammu and Kashmir administration to apprise it on Thursday how many public transport vehicles like buses and trucks plied there after restrictions were imposed following the abrogation of Article 370 provisions.
The direction came when senior Congress leader and former Chief Minister Ghulam Nabi Azad alleged that the public transport vehicles were not allowed to ply in Jammu and Kashmir which amounted to abrogation of fundamental rights like freedom to move freely and practise business.
The farmers could not transport apples and ailing persons could not go to hospitals for treatment, he claimed.
“Is there a ban on public transportation. Are they not allowing any buses or trucks,” a three-judge bench headed by Justice N V Ramana asked, adding, “Tomorrow morning, first thing you have to tell us, as to how many buses, public transport, trucks have plied in the past days”.
Senior advocate and Congress leader Kapil Sibal, appearing for Azad, said “we all support the government on the issue of terrorism”, but the issue is, can the lives of seven million citizens be “paralysed” and their fundamental rights, instead of being restricted, be abrogated altogether.
“A person, who had to take the chemotherapy dosage, could not go the hospital. Hospitals are open, but how do I reach there. Persons cannot take part in last rites because you have section 144 (CrPC) in place,” he said.
“The question is you say that all the seven million people are not terrorist and few of them may misuse the freedom, then how to choose the (terrorist) people,” the bench, which also comprised R Subhash Reddy and B R Gavai, asked.
The cross-border terrorism has been going on since 1990s and the difficulty in finding the miscreants on the part of the state does not mean that the authorities will abrogate fundamental rights of all the citizens, Sibal said.
“Detain them (terrorists), arrest them. Cross-border terror did not start today. Anyone can cross the border. It cannot be reason for shutting down everything on August 5,” he said.
The senior lawyer though said that depending upon the fact of each case, the State is empowered to impose restrictions on the fundamental rights which, however, cannot be abrogated.
Azad had moved the top court in September seeking permission to visit Jammu and Kashmir to enquire about the wellbeing of his family members and natives of Kashmir valley.
At the outset, Sibal referred to a constitutional amendment and said the “internal disturbance” was no more a ground to invoke emergency under Article 352 and moreover, the communication blackout has nothing to do with public order maintenance.
The State can take over the business but cannot destroy it and ask its people not to go out of home and not to do their business and practise the profession, he said, adding that Azad has been stopped at the airport several times.
Sibal said that the apex court will be deciding for the first time a case like this where the fundamental rights of seven million people have been abrogated.
“Has the Supreme Court never decided an issue like this before. What had happened in 1970s during the Emergency,” the bench asked.
Sibal said it was his interpretation that the Centre felt that if it changed the character of Article 370, then there would be unrest.
“But why not allow demonstrations to be carried peacefully,” he said, adding that the state action gave the impression that people was “anti-nationals”.
He said that a country of 1.2 billion people cannot in danger because of cross-border terrorism as “this country is too big and too mighty for that”.
Sibal will resume advancing submissions on Thursday.
Earlier, the apex court had allowed Azad to visit four districts in Jammu and Kashmir for assessing the impact on life of daily wagers due to the present situation prevailing after the abrogation of Article 370 provisions.
It had noted Azad’s submission that he would not indulge in any political rally or political activity during his visit to Srinagar, Anantnag, Baramulla and Jammu districts.
“I (Azad) am a six-time Member of Parliament and a former chief minister of the state. I as Member of Parliament can visit the whole of India but cannot visit my home state. I need to visit the people.
“I have a fundamental right to meet the people of my state and my constituency and know about their well-being,” his lawyer had said.
Azad had said that he had thrice tried to visit the state on August 8, 20 and 24, but was sent back from the airport itself.
In his petition before the top court, he has also sought permission to check on social conditions of the people after a clampdown was imposed by the authorities following the scrapping of the state’s special status and its bifurcation into Union territories.
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