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CASE COMMENTARY: SHAH FAESAL VS UNION OF INDIA ON 2 MARCH, 2020

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FACTS OF THE CASE

  • In order to grant the state of Jammu and Kashmir a specific autonomous status, Article 370 was added to the Indian Constitution. This article gave the state the authority to keep its constitution and stipulated that the Indian Parliament’s laws would only apply to the state government of Jammu and Kashmir.
  • In addition, Article 370(3) of the Indian Constitution gave the President of India the power to change or repeal the provision. On August 5, 2019, the President exercised this power by issuing a notification stating that Article 370 was void. The extension of the Indian Constitution to the State of Jammu and Kashmir, like the other Indian States, was made effective by the President’s Constitutional Order.
  • Senior learned counsel Mr. Raju Ramachandran has filed a claim that the aforementioned directives are unconstitutional.  However, senior counsel Dinesh Dwivedi and Sanjay Prakash argued that because both cases fall under Article 370, the Supreme Court had made its decision in the Sampat Prakash v. State of Jammu and Kashmir case (1969 AIR 1153) without taking into account the facts resolved in the Prem Nath Kaul v. State of Jammu and Kashmir case (1959 AIR 749).  They had argued that this error necessitated referral to a larger bench because the current bench had the same number of judges as the benches of Sampath Prakash and Prem Nath Kaul and was therefore ill-equipped to settle any disputes between the two rulings.

ISSUES RAISED BEFORE THE COURT

  • When can a case be assigned to a large bench?
  • Whether the case needs to be transferred to a large bench due to contradictory ideas, ie, Sampat Prakash v. State of Jammu and Kashmir and Prem Nath Kaul vs. Jammu and Kashmir State?
  • Does the ruling in Sampat Prakash v. State of Jammu and Kashmir violate the precedent set in Prem Nath Kaul v. State of Jammu and Kashmir since it disregards the ruling in that case?

CONTENTIONS

Arguments from the Petitioner’s Side:

  • The petitioner side’s learned lawyer argued against the idea that the Sampat Prakash v. Jammu and Kashmir state case is not per incuriam to hold the case’s decision.  Both cases were unique, and the case should be explained in light of the particular facts.
  • The learned counsel argued that it was pointless to bring up the two examples.  The court in Prem Nath Kaul vs. Jammu and Kashmir made reference to Yuvraj’s legislative authority rather than the nature of Article 370.  In contrast, the court decided in Sampat Prakash v. State of Jammu and Kashmir whether Article 370 powers could continue after the state’s Constituent Assembly was dissolved.
  • It was further argued that the current case is related to many other issues that the previous bench did not consider.
  • Senior Advocate CU Singh, Shekhar Nephade, and Gopal Shankaranarayanan echoed the points made by senior learned counsel Dr. Rajeev Dhavan, stating that the discrepancy in the aforementioned orders does not make the context required.

Arguments from the Respondent’s Side

  • Mr. Dinesh Dwivedi, the respondent’s senior advocate, argued that the case was referred to the larger bench because it was established in the Prem Nath Kaul v. State of Jammu and Kashmir case that the Jammu and Kashmir Constituent Assembly recommended the use of parliamentary and presidential powers under Article 370.  Even after the legislature was dissolved, power was still subject to Article 370.  After the constituent assembly was dissolved, a path was in fact found by approving a Presidential Order that had been approved in Sampat Prakash v. State of Jammu and Kashmir.  Counsels contested this, resulting in an irreparable dispute between these two rulings.
  • He argued that two equal benches of five judges had given contradictory judgments regarding Article 370 in the cases Prem Nath Kaul v. State of Jammu and Kashmir and Sampat Prakash v. State of Jammu and Kashmir (1969 AIR 1153). He argued that while Kaul had taken the position that Article 370 was operative only until the time of the implementation of the J&K Constitution, Prakash had argued that Article 370 was permanent.
  • In the case of Prem Nath Kaul vs. Jammu and Kashmir, the learned senior advocate Mr. Sanjay Parikh held the opinion that decisions with a broad scope must always be binding on the benches after the same effect. He felt that, after a thorough discussion of the history and rationale behind the initiation of Article 370, the state’s constituent assembly should ultimately decide the constitutional relationship between the state of Jammu and Kashmir and the Union of India, and that one should be regarded as a temporary arrangement.
  • In another case, Mohd. Maqbool Damnoo v. State of Jammu and Kashmir, it was argued that the interpretation of Article 370, which was decided in the case of Prem Nath Kaul v. State of Jammu and Kashmir, was disregarded.  Even there, the Court did not specify whether Article 370 would remain in effect following the implementation of the Jammu and Kashmir Constitution.
  • On the basis of the reference requirement, learned Senior Counsel Mr. Zafar Shah of the Jammu and Kashmir High Court Bar Association argued that, even though the two five-judge bench rulings in Prem Nath Kaul v. State of Jammu and Kashmir and Sampat Prakash v. State of Jammu and Kashmir do not directly conflict, there would be a conflict with Sampat Prakash’s later conclusion if it were decided that Article 370 is temporary in the Prem Nath Kaul case.

RATIONALE

The High Court of Jammu and Kashmir, where the case was originally tried, upheld the detention order as legal. The court’s argument was that the authorities had given adequate reasons for the detention and that there were no malafide motives behind the order.  The court recognized the delicacy of the situation in Kashmir and the requirement to preserve public order.

The reasoning of the court may be summarized as:

  • Subjective Satisfaction: The court reiterated the principle that preventive detention is founded on the subjective satisfaction of the detaining authority on the probability of an individual indulging in activities detrimental to public order.
  • Limited Judicial Review: The court reiterated the limited scope of judicial review in cases of preventive detention. It stated that the court cannot substitute its own judgment for the subjective satisfaction of the detaining authority unless the order is malafide or based on extraneous considerations.
  • Public Order vs. Personal Liberty: The court balanced the conflicting interests of personal liberty and public order. It held that in the then-existing situation in Kashmir, the interests of public order were superior to the individual’s right of freedom of speech and expression.

DEFECTS OF LAW

The Shah Faesal case highlights towards some inherent faults and issues pertaining to the utilization of the Public Safety Act: 

  • Vague Grounds for Detention: The PSA grounds detention on undefined and widely expressed grounds, namely “threat to public order,” without necessitating details of alleged activities. Its vagueness makes it harder for the person detained to assail the order, and the legislation is susceptible to abuse.
  • Lack of Judicial Review: Although the courts can review detention orders, there is limited scope for review. The courts tend to shy away from interfering with the subjective satisfaction of the detaining authority, and thus relief becomes hard to obtain for detainees.
  • Prolonged Detention without Trial: The PSA provisions for detention without trial for extended periods, up to two years in certain situations. This denies the detainee the right to defend themselves against the charges and goes against fundamental principles of natural justice.
  • Potential for Misuse: The wide and open-ended nature of the provisions in the PSA, as well as the lack of access to judicial review, exposes it to abuse by the government in censoring dissent and stifling normal political expression.

INFERENCE

The Shah Faesal case shows the intricate dynamics between national security, public order, and individual rights in troubled areas. Although the court ruled in favor of the legality of the detention, the case is problematic in terms of the use of preventive detention legislation such as the PSA. It highlights the necessity for increased transparency and accountability in the use of such legislation, as well as the need to protect fundamental rights even in difficult situations.

The case also raises at the forefront the issue of the extent of freedom of speech and expression when national security is at stake. Reasonable limitations on free speech are justifiable, but the authorities must be careful to not employ such limitations as a means to silence opposition or stifle genuine political activity.

The case is a reminder of the importance of finding a fine balance between the interests of the state and the human rights of individuals. It highlights the need for judicial caution in ensuring preventive detention law is not abused and that personal freedoms are safeguarded. The case also calls for a greater sensitivity in managing political opposition within war zones, one that meets the root cause of grievances as opposed to employing repressive forces.

REFERENCES

NAME: RITISHA SINGH

COURSE: BALLB(HONS.)

COLLEGE: CHHATRAPATI SHAHU JI MAHARAJ UNIVERSITY KANPUR