By Ahad Younis
Reported by Team RK
Srinagar, 30 May 2020
The maxim “ ubi jus ibi Remedium “ which means where there is right there remedy. It is originally a common law maxim and has a foundational principle in India. We have rights as well as remedies in case of any infringement of the former. Our democratic constitution guaranties all the basic rights infect it contains a full chapter of fundamental rights and authorizes to knock the door higher courts if same is denied. Under article 32 of the constitution, supreme court can grant set of prerogative writs to enforce the fundamental rights guaranteed by the legal document.
The constitution framers had fashioned and enlightened the constitution in such a way, it set an example of freedom and liberty and many countries across the world are moved by it. It is worth saying that over the past few decades the idea of remedies moving in parallel with rights has come to wither. Court’s history is littered with the cases where the violation right is found but the remedy has not forth coming. Leadless to mention, I have come across people who often asked me about the slow working of courts, excoriated justice delivery system of courts, recently a Facebook user questioned me why there are corers of cases pending? Whey courts are not remidifing at appropriate time? Really these questions pose a challenge to judicially system. On August 05 2019 the all the means of communication where shutdown in anticipation of the constitutional changes, fearing law and order problems.
The communication lockdown was imposed under the Temporary suspension of Telecom Services Rules (Suspension of Rules) which enables the central or state government to suspend telecom services when there is a risk to public safety. The suspension rules indeed provide a mechanism for solitary review of suspension orders. While in the midst of communication blockade, the matter was ultimately dragged to court on January 10, the court in its decision found suspension orders were not valid. The court replaced the solitary review with periodic review and found the orders against principle of proportionality and directed the government to review the suspension after every seven days. But the court didn’t set aside the order. After the intervention of court gradual access to all communication was permitted. Fixed internet line was restored first for essential services and hospitals, access to social media was first denied but later on it was reinstated but the speed was restricted to 2G and continues till now. Read full judgment of January 10 2020 in Anardha Bhasin verses union of India.When the COVID 19 engulfed all forced us to stay indoors, all quarters in Kashmir demands restoration of 4G services but Government seemed no all ears. This issue was brought to SC, the Petitioner echoed the inner voice of J&K, argued that restriction was hindering doctors and general public from accessing information on COVID 19 and students from accessing education material. It is understood the importance of national security, the court in the Foundation for Media Professionals vs. Union Territory of Jammu and Kashmir observed that we have to ensure the national security and human rights can be reasonably balanced.
The SC on May 11 2020 refused to determine the constructional validity of the restriction, the court found it disappropriate but did not issue any order for restoration. Instead doing so it set up a committee consisting of national and state bureaucrats to examine the content of Petitioners. The Court did not specify the time in which the court has to report back. It is sad to say that court has handed sacrosanct power to executive committee. By doing so it has abdicated its obligation as a separate organ. Combination of executive cliques is a great concern. The court must have appointed independent judicial officers in this Committee. The court has also violated natural principle i, e no one can be judge in his own case. How Government can be judged in its own case?CONCLUSION It is not the question of speed but the access. The top court’s attitude particularly in this case should concern all the legal luminaries.
Every legal expert must denounce it in strong words for the sake of independence of judiciary. To me every person associated to the law profession must come forward as it is time to reshape the credibility of judiciary among common masses. We have to make them believe that judiciary is independent in letter and spirit.