The Daily Fix: SC could indeed have found time to hear Kashmir cases – if it had been inclined to

When a clutch of petitions related to Jammu and Kashmir came before the Supreme Court on Monday, Chief Justice Ranjan Gogoi, who was heading the three-judge bench that was to hear the matter, said there was no time to consider the cases. This was because the Babri Masjid matter was underway before a Constitution bench over which he also presides, Gogoi said.

Gogoi’s three-judge bench shifted the Kashmir cases to a special five-judge Constitution bench formed last week. This bench will begin the hearings on Tuesday.

When a judge is part of a Constitution bench, especially in a matter of such great importance as the Ayodhya dispute, there is indeed very little time to allot for other matters. But is it necessary for the Kashmir cases to be heard only by a bench headed by the chief justice?

There are now 34 judges in the Supreme Court. The Kashmir issues involve urgent questions of liberty and the right to life of close to seven million people. The gravity of the situation in Kashmir, which has been under a communications lockdown ever since the Bharatiya Janata Party government at the Centre decided on August 5 to hollow out the territory’s special constitutional status, far outweighs the long-running Ayodhya dispute.

Given the extraordinary situation, the chief justice, as the master of the roster, could have split the Kashmir cases and allotted them to different benches to expedite the hearings. Instead, all cases have now been moved to a special five-judge bench.

While the constitutionality of abrogating Jammu and Kashmir’s special status is indeed a significant legal question that requires the intervention of a Constitution bench, there is no reason for habeas corpus and petitions challenging curbs on press freedom to be heard by a larger bench. Any usual two-judge bench could have handled these cases effectively.

It is not as if the chief justice’s court has handled these petitions especially well. For example, a habeas corpus petition filed by Rajya Sabha MP Vaiko to have former Jammu and Kashmir Chief Minister Farooq Abdullah produced before the court was adjourned earlier in September. By Monday, that section of the petition that wanted the court to facilitate Abdullah’s participation in an event in Tamil Nadu on September 15 had become redundant.

Further, the court also pointed out that Abdullah has now been detained under the Public Safety Act, a move the Centre made after Vaiko filed the habeas corpus petition. So the court reasoned that there were no issues alive in the petition and dismissed it In fact, it had been the Centre’s position since August 5 that Abdullah was not under detention even though his movements had clearly been restricted.

Hopefully, the five-judge bench that is set to address the Kashmir matters, including one on the human rights violations of children in the Valley, will expedite the hearings.