Year-ender 2023: Important judgments of the High Court of Jammu and Kashmir and Ladakh

The High Court of Jammu and Kashmir and Ladakh delivered some vital judgments in 2023. ETV Bharat's Muhammad Zulqarnain Zulfi takes a look at the key judgments given by the High Court.

SRINAGAR (Jammu and Kashmir): The much-awaited judgment on the abrogation of Article 370 was pronounced by the Supreme Court of India in the final quarter of 2023. During the year, the High Court of Jammu and Kashmir and Ladakh also delivered some important rulings. In addition to providing relief to the petitioners, who included journalists, civilians, and politicians, the Court was at the forefront of quashing the Jammu and Kashmir administration's decisions.

The Jammu and Kashmir administration's decisions have been the subject of critical remarks of the High Court in 2023, ranging from the revocation of politicians' passports to the detention of journalists, civilians, and religious scholars under the Unlawful Activities (Prevention) Act, 1967 and Public Safety Act, 1978 to the re-registration of vehicles.

Here are some of the important Judgements pronounced by the High Court in 2023:

• Iltija Mufti gets Passport

On August 25, this year, Iltija Mufti, daughter of PDP president and former Jammu and Kashmir Chief Minister, Mehbooba Mufti was issued a standard passport with 10-year validity. This came after she had filed a fresh appeal with the Jammu and Kashmir HC asking for its intervention in extending the validity of her passport and removing any restrictions on her international travel. Earlier, on April 6, this year, the authorities had issued her with a conditional passport for two years to allow her to study in the United Arab Emirates.

On June 18, the 35-year-old Iltija Mufti approached the HC to contest the conditional passport that had been issued to her. Her argument was that because her passport was only valid for travel to the United Arab Emirates (UAE) and solely for her further education, it limits the range of her international travel.

The court after agreeing to hear the matter posted the case for hearing on July 19, 2023. On the scheduled date, the Jammu and Kashmir administration and other respondents sought a time of two weeks to file objections to the case. The Court not only granted the time but also issued notice to the respondents. Meanwhile, the Regional Passport Officer Srinagar handed over the passport to Iltija without any restriction.

She had approached the HC in February after her application for a passport was not cleared following an adverse report by the J&K Police’s Criminal Investigation Department (CID). Her passport had expired on January 2 and she applied for a fresh one on June 8 last year. The court had then directed the regional passport office to look into the merits of the case.

• Cases against Religious Scholars and Journalists quashed

The High Court on September 8 quashed the detention orders of Moulana Abdul Rashid Sheikh alias Dawoodi and Mushtaq Ahmed Bhat alias Veeri, who were booked under the Public Safety Act (PSA). Pertinently, both clerics were booked under PSA last year. After hearing a petition filed by Dawoodi through his lawyer Asma Rashid, Justice Sanjay Dhar quashed the detention order and directed the authorities for his forthwith release.

"From the aforesaid legal position on the subject, it is clear that non-consideration or an unreasonably belated consideration of the representation tantamounts to non-compliance of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law," the court observed. It further said that "the petition is allowed and the impugned order of detention is quashed. The detainee is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case."

Similarly, in Veeri's case, Justice Rajnesh Oswal remarked: "Taking into consideration the submissions made by learned counsel for the petitioner under instructions from the petitioner in respect of the voluntary offer of the petitioner to submit an undertaking, the petitioner is directed to furnish an undertaking before the District Magistrate concerned that the petitioner will not deliver any hate or anti-national speech on any occasion. The undertaking shall be furnished by the petitioner within a period of two days after his release from custody and the receipt of the same be furnished before the Registrar, Judicial of this court."

Interestingly, both clerics are residents of south Kashmir's Anantnag district and were booked under PSA on September 13, 2022. Meanwhile, the HC bench headed by Chief Justice K. Kotiswar Singh quashed the Public Safety Act (PSA) proceedings against Kashmiri journalist Sajad Gul in November, this year.

Rapping the J&K administration for "not applying its mind" while approving the PSA proceedings against Gul, the court observed that there was "no specific allegation" in the PSA dossier to suggest that Gul’s activities were "prejudicial to the security of the state". The court directed the administration to release Gul “forthwith from preventive custody if not required in any other case.”

Another journalist Asif Sultan was arrested in August 2018 and was later subsequently booked under the Unlawful Activities (Prevention) Act. The HC ordered his release this month. Justice Vinod Chatterji Koul concluded that the procedural requirements were not followed and complied with by the authorities in letter and spirit while detaining Sultan.

"In the present case, the procedural requirements, as discussed above, have not been followed and complied with by the respondents in letter and spirit, and resultantly, the impugned detention needs to be quashed," the court said.

It noted that the detention record does not indicate that copies of the First Information Report (FIR) or the statements recorded under Section 161 of the Code of Criminal Procedure (CrPC) in connection with the investigation of the UAPA case were ever supplied to him.

Likewise, Fahad Shah, the Editor-In-Chief of the Kashmir Walla magazine, too was released last month after the HC granted him bail on November 17, 2023.

• HC directs Defence Ministry to pay Rs 2.49 crore

This month, the High Court ordered the Ministry of Defence to reimburse twenty-four households of displaced people from Pakistan-occupied Kashmir (PoK) for past-due rent obligations of Rs 2.49 crores. The Indian Army took over the family land, which had been granted to them in 1953, without providing them with a fair trial or compensation in 1978. Justice Wasim Sadiq Nargal stressed that land designated for rehabilitation could not be seized without due process or appropriate compensation. The court ruled that once land (more than 224 kanals) is given to displaced people (DPs) for their rehabilitation, it cannot be taken away from them in any form or by any agency without the DPs having to pay rent or get compensation after following the proper legal procedures.

The ruling stemmed from petitions submitted by the displaced people's descendants. The government was ordered by the court to provide the outstanding rental compensation of Rs 2.49 crores for the years 1978 to 2009 within a month. It further stipulated that any additional rent from 2009 onwards must be assessed and paid within the month, with a warning that noncompliance will result in a six percent annual interest penalty.

• 'Fundamentalist Muslim cannot be equated with separatist'

Justice Atul Sreedharan reviewed the various grounds that the petitioner's son was detained on in August this year while the court deliberated over the instant petition, which was filed by the detainee's father challenging the detention order issued against his 22-year-old son on April 8, 2022. Justice Sreedharan made a significant observation regarding one of the grounds for detention, namely the detainee's fundamentalist ideology.

The Court noted that the District Magistrate's use of the term "fundamentalist ideology" does not imply that the detainees had an extreme or separatist mindset. A Muslim who adheres to the core principles of Islam and thinks that they are true is considered fundamentalist. It can't be detrimental to his character in any way.

The contested detention order, which ordered the petitioner to be held at Kot Bhalwal Jail in Jammu, was issued by the District Magistrate of Pulwama in accordance with Section 8(a) of the Jammu & Kashmir Public Safety Act, 1978. The challenged order of detention revealed that the petitioner had to be detained in accordance with the Act of 1978 in order to stop him from behaving in a way that would jeopardise the security of the state. The order also included the grounds for custody. The petitioner was satisfied that the detention reasons were ambiguous and unspecific about the exact date and time of the claimed conduct that was detrimental to the country.

The respondents said that Detenue had turned into a "hardcore fundamentalist" and had willingly accepted to work as an Over Ground Worker (OGW) with The Resistance Front (TRF), which the lawyers claimed is a 'LeT organisation'. In relation to the allegations made against the detainee's fundamentalist ideology, the Court noted that in order for someone to be recognised as a devotee of the Abrahamic Faith, they must inevitably hold to a number of core religious beliefs. It also noted that the detainee's personality cannot be adversely affected by his or her religious beliefs as a fundamentalist Muslim. The contested detention order was revoked by the court after accepting the petition.

• The Fight for 'Plough' symbol

The High Court maintained its single bench decision in August this year to let the National Conference (NC) use the "Plough" emblem in the subsequent election to the Ladakh Autonomous Hill Development Council (LAHDC), Kargil. It is undeniable in this instance that the National Conference, the petitioner party, is a recognised political party in Jammu & Kashmir. This party has planned to field candidates for the Kargil LAHDC in the next elections, according to a division bench led by Chief Justice N Kotiswar Singh and Justice M A Chowdhary.

Nonetheless, it stated that any candidate fielded by NC in the Kargil local elections would be eligible to use the "Plough" symbol in accordance with the concession granted by paragraph No. 10 of the Election Symbols Order of 1968, as the symbol has already been awarded to NC, a recognised party in Jammu and Kashmir.

The court held that the Election Commission of India lacks jurisdiction to conduct elections for the LAHDCs because the election concerns the Kargil LAHDC. The UT Authority shall bear primary responsibility for organising and carrying out the elections for the LAHDCs.