Skip to main content

Constitutionally legitimate? Kashmir lockdown smacks of tyranny in a dictatorship

By Atul, Sandeep Pandey*  
This is a matter of concern because the current policies of Goverment of India have pulverised the polity in Jammu and Kashmir (J&K) and the recovery of a healthy democracy appears to have a remote chance here. That this should happen in world's largest democracy with institutions of governance completely failing the people of J&K is utterly shameful.
A petition was recently filed in the Supreme Court challenging the draconian curbs imposed in Kashmir since August 2019. Among other things, the petitioners pleaded for the restoration of internet services in the valley. They argued that the continued suspension of internet services even during the Covid pandemic is affecting people’s rights to health, education, occupation, speech, and access to justice.
The Apex Court while concurring with the petitioners that the incessant lockdown for the past 10 months was militating against the previously laid down principles refused to direct the government for restoring 4G internet connectivity citing security reasons.
In that light, is the Kashmir lockdown justifiable if one uses the test of reasonableness and the proportionality standard often used by the Supreme Court in determining the reasonability of restrictions imposed on Fundamental Rights especially with respect to restrictions on freedoms, part of Article 19 of the Indian Constitution.
In Kashmir, the government has imposed massive curbs on media and the internet for the last ten months without any reasoned order. Even when asked by the Supreme Court, the government miserably failed to produce any order, affidavit or replies in matters relating to this lockdown and curtailment of civil liberties.
Instead of placing sufficient material to justify its actions in Kashmir it only sought adjournments. Moreover, when seen in the light of the surrounding circumstances and the inherently anti-Muslim ideological foundations of the ruling dispensation, it becomes clear the restrictions in Kashmir are extremely arbitrary, excessive and beyond the requirements of the situation.
It also lacks good faith and fails to take into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public.
Whereas the test of reasonableness lays down no clear formula but stresses that the restrictions must not be arbitrary or excessive in nature so as to go beyond the requirement of the interest of the general public, Proportionality standard lays down an elaborate four-prong formula to determine the reasonableness of an action.
First, that a measure restricting a right must have a legitimate goal; second, that the concerned restriction must be a suitable means of furthering this goal; third, that there must not be any less restrictive but equally effective alternative to achieve that goal; fourth, that the measure must not have a disproportionate impact on the rights holder.
The legitimate aim here concerns with aims that correspond to the Constitutional values and goals and which the Constitution does not prohibit. When it comes to Kashmir, there is a great deal of opaqueness on the motive behind the restrictions as the government has not been very forthcoming in explaining the rationale for the incessant restrictions except that the curbs have been imposed as a precautionary measure to maintain law and order.
It should be noted however that under the garb of law and order, Kashmiris have been denied all their civil, political and Constitutional rights to voice their concerns and express their opinions over political decisions concerning them taken without their consent. We cannot use terrorism as an excuse to shut down everything.
Even if the government feels that there would be unrest, it should have allowed peaceful protests to be carried out. This whole exercise smacks of tyranny in a dictatorship and is not a democratic exercise and hence it can never be a legitimate aim from the viewpoint of a Constitution that claims justice, liberty, equality and fraternity as its guiding principles.
The brazen exercise can never be called a suitable means, especially in a democratic welfare state that boasts about the legacy of Gautam Buddha and Mahatma Gandhi
As for the suitability of the means to achieve the given ends, assuming that the aim in the present case is the maintenance of law and order, the government in order to further this aim has sent thousands of additional troops to the disputed region, imposed a crippling curfew, shut down telecommunications and internet, and arrested thousands of civilians including mainstream political leaders.
In such a case, this brazen exercise can never be called a suitable means, especially in a democratic welfare state that boasts about the legacy of Gautam Buddha and Mahatma Gandhi. Such means are used by coward dictatorial regimes to curb dissent and uprisings. What kind of law and order can be achieved by shutting down everything and destroying the whole economy? 
Such a coercive means is not only not suitable but also unsustainable and unmaintainable in all circumstances. Could there have been less restrictive but equally effective alternative? Complete shutdown and total lockdown is certainly the most extreme method to maintain law and order. It is also the least effective way as the whole functioning of society comes to a sudden halt.
The purpose of law and order is to ensure smooth interaction between all organs and institutions of a society in order to facilitate its all-around progress and development. What is the point of achieving such a law and order where the society becomes a living dead which cannot freely communicate, interact and express itself?
Experiences show that coercive methods have rarely been successful in achieving desired goals. The lasting peace that can be achieved by dialogue and negotiations with concerned stakeholders cannot be achieved by muzzling dissent through the fear of the bayonet.
Complete absence of dialogue, what to talk of with separatist, militant or civil society organisations, even with mainstream political parties with whom Bhartiya Janata Party has had alliances, has been the hallmark of current regime led by it in New Delhi.
While the government may boast that it has achieved the law and order through these curbs, it cannot deny the disproportionate impacts on the rights holder, the residents of Kashmir. The lockdown has certainly not come cheap. According to the Kashmir Chamber of Commerce and Industry estimates the shutdown has already cost the region more than $1.4bn (£1.13bn), and thousands of jobs have been lost. 
The state interest appears to have taken overwhelming precedence over the individual and societal interests of Kashmir. Due to the lockdown, a large number of Kashmiris have been robbed of not only their basic civil and political rights and liberties but also their human rights. 
Hundreds of people have been arrested and held without trial and moved to jails far from home. Internet and media shutdown amounts to disproportionate restrictions on free speech. In the words of an eminent lawyer, never before the lives of 70 lakh people have been paralysed like this.
The excessive restrictions imposed by Government on civil and political liberties in Kashmir even during the Covid pandemic neither pass the muster of reasonableness nor of proportionality as laid down by the Indian Supreme Court in various cases.
They are not a reasonable restriction within the meaning of Article 19 as they are arbitrary and excessive in nature and totally go beyond the requirement of the interest of the general public which has been suffering immensely for the last ten months.
They fail the proportionality inquiry as the measures at hand do not correspond to the greater Constitutional values and goals that claim justice, liberty, equality and fraternity as their guiding principles.
---
*Atul is a fourth year LLB student at National Law University, Delhi; Sandeep Pandey a Magsaysay award winning social activist, is visiting faculty there for this semester

Comments

TRENDING

India under Modi among top 10 autocratizing nations, on verge of 'losing' democracy status

By Rajiv Shah
A new report, prepared by a top Swedish institute studying liberal democracy, has observed that there has been a sharp “dive in press freedom along with increasing repression of civil society in India associated with the current Hindu-nationalist regime of Prime Minister Narendra Modi.” The report places India among the top 10 countries that “have autocratized the most”. Other countries that have been identified for rolling towards autocracy are -- Hungary, Turkey, Poland, Serbia, Brazil, Mali, Thailand, Nicaragua and Zambia.

Savarkar 'criminally betrayed' Netaji and his INA by siding with the British rulers

By Shamsul Islam*
RSS-BJP rulers of India have been trying to show off as great fans of Netaji. But Indians must know what role ideological parents of today's RSS/BJP played against Netaji and Indian National Army (INA). The Hindu Mahasabha and RSS which always had prominent lawyers on their rolls made no attempt to defend the INA accused at Red Fort trials.

Border conflict? RBI nod India's 'brotherly' help to China internationalise its currency

By Bhabani Shankar Nayak*
In the middle of a global pandemic, China started an unprovoked border conflict with India. It unraveled trust deficit and ties between the two neighbours. As thousands of Chinese troops tried occupying Indian territory, the Narendra Modi-led BJP government directs the Reserve Bank of India (RBI) to allow the Bank of China to start regular banking services in India. The Bank of China will now operate in India like any other commercial banks.

Gujarat link of controversial US doctor who 'forced' WHO quiz Trump's wonder drug

By Rajiv Shah
A top American doctor, Sapan Sharankishor Desai, born and raised in the “affluent” North Shore (Chicago) region of Illinois by Indian parents, at one point of time involved in NGO activity through  dedicated to “improving” the lives of the impoverished in Gujarat, is in the eyes of a major international storm following his paper (retracted) in a “Lancet” questioning Donald Trump-promoted drug hydroxychloroquine.

RSS supremo Deoras 'supported' Emergency, but Indira, Sanjay Gandhi 'didn't respond'

By Shamsul Islam*
National Emergency was imposed on the country by then Prime Minister Indira Gandhi on June 25-26, 1975, and it lasted for 19 months. This period is considered as ''dark times' for Indian democratic polity. Indira Gandhi claimed that due to Jaiprakash Narayan's call to the armed forces to disobey the 'illegal' orders of Congress rulers had created a situation of anarchy and there was danger to the existence of Indian Republic so there was no alternative but to impose Emergency under article 352 of the Constitution.

Clean chit to British rulers, Muslim League? Karnataka to have Veer Savarkar flyovers

By Shamsul Islam*
The BJP government of Karnataka led by BS Yediyurappa is going to honour Hindutva icon VD Savarkar by naming two of the newly built major flyovers in Bangalore and Mangalore after him. There was a huge uproar against this decision of the RSS-BJP government as many pro-Kannada organisations with opposition parties and liberal-secular organizations questioned the logic to ignore so many freedom fighters, social reformers and others from within the state.

Hurried nod to Western Ghat projects: 16 lakh Goans' water security 'jeopardised'

Counterview Desk
Taking strong exception to "virtual clearances" to eco-sensitive projects in the Western Ghats, the National Alliance of People’s Movements (NAPM) in a statement has said urged for a review of the four-lane highway, 400 KV transmission line and double tracking of the railway line through the Bhagwan Mahavir Wildlife Sanctuary and Mollem National Park in Goa.

Disturbing signal? Reliance 'shifting focus' away from Indian petrochemical sector

By NS Venkataraman*
Reliance Industries Ltd (RIL), a large Indian company, has expanded and grown in a spectacular manner during the last few decades, like of which no industrial group in India has performed before. RIL is now involved in multi various activities relating to petroleum refineries, petrochemicals, oil and gas exploration, coal bed methane, life sciences, retail business, communication network, (Jio platform) media/entertainment etc.

Letter to friends, mentors: Coming together of class, communal, corona viruses 'scary'

By Prof (Dr) Mansee Bal Bhargava*
COVID greetings from Ahmedabad to dear mentors and friends from around the world…
I hope you are keeping well and taking care of yourself besides caring for the people around you. I’m writing to learn how is the science and the society coping with the prevention and cure of the pandemic. I’m also writing to share the state of the corona virus that is further complicated with the long-standing class and communal viruses.