Srinagar: A high court order directing the authorities to stop denying passports to J&K residents “for the alleged sins” of their relatives has turned the spotlight on the controversial policy following Article 370 under which many in Jammu and Kashmir continue to be denied their constitutional right to travel outside the country.
In a landmark judgement on February 11, a single bench of J&K high court ruled that the authorities can’t deny the fundamental right to travel guaranteed under Article 21 of the constitution to the residents of the union territory because of the alleged association of their family members with militancy.
The order was passed in response to a writ petition filed by Mohd Amir Malik, a 29-year-old resident of Shagan in Ramban district of Jammu, under Article 226 of the Constitution of India which empowers the high courts to “enforce fundamental rights” of the citizens.
Malik told the court that the regional passport office (RPO) in Udhampur didn’t issue his travel document over the remarks ‘Not Cleared’ and ‘may be likely to misuse the passport’ in a field verification report.
The adverse report was submitted by the Additional Director General of J&K Police’s criminal investigation department (CID) to the RPO Udhampur on the grounds that Malik’s brother, Mohd Ayaz Malik, was a militant who was killed in 2011 and his father, Abdul Rahim Malik, who is ‘enlisted as OGW in the records’.
OGW is a term used by the J&K Police to describe the “over ground workers” who support militants with cash, shelter or other supplies.
Also read: Kashmiri Student Activist Waiting for a Passport Ten Months After Application
Citing two Supreme Court and a J&K high court judgements, the single bench rejected the state’s argument, ruling that the petitioner cannot be deprived of his fundamental right to travel, as guaranteed under Article 21 of the Constitution, only because of the association of his father and brother with militancy.
“The argument… deserves to be rejected on the ground that merely because the brother of the petitioner was a militant and his father is an OGW of the terrorists, the petitioner cannot be deprived of his fundamental right guaranteed under Article 21 of the Constitution of India,” Judge M.A. Chowdhary said in an 11-page judgement.
The court directed the CID to “re-submit the report uninfluenced by the conduct or activities of the brother… (and) father” of the petitioner to the RPO Udhampur within four weeks “who shall consider the case… and pass an appropriate order” within two weeks thereafter.
Sheikh Shakeel Ahmed, a civil liberties lawyer based in Jammu, welcomed the high court’s judgement, saying it would be a sigh of relief for hundreds of families in the union territory who have been denied passports by the authorities for no crime of theirs.
“The apex court has already ruled that the citizens have a fundamental right to obtain a passport and travel abroad. A person can’t be condemned for a crime he or she hasn’t committed. The high court has interpreted the law correctly and the judgement is in the larger interest of Jammu and Kashmir,” he told The Wire.
Senior National Conference leader and party chief spokesman Tanvir Sadiq said the government of chief minister Omar Abdullah has been a champion of protecting the individual rights of the people of Jammu and Kashmir.
“Curtailing a citizen’s liberty and the freedom to earn a dignified living just because their relative is involved in militancy was an unusual and unfortunate decision. The high court’s order is a big relief and a welcome step because there are many such cases pending with the authorities,” said Sadiq, who won the 2024 assembly election from Zadibal constituency in Srinagar.
He added he was hopeful that the order would be implemented by the authorities, “I hope those who have been denied passports on this ground also get relief with the high court’s decision”.
Also read: Passport Denials and Travel Bans Are Now Part of Life in J&K
Following the reading down of Article 370 by the Bharatiya Janata Party-led Union government in 2019, J&K police have cited the need to curb “anti-India propaganda machinery” as a reason for imposing the bar on hundreds of residents of the union territory whose passport applications have been rejected.
The J&K administration has also barred some aspirants from joining the government services despite them having qualified the competitive exams simply because their relatives, some of whom are dead, have been involved in militancy.
On April 8, 2023, the police said 805 out of around 2.82 lakh passport applications received were rejected and 5,151 were pending following “deep vetting… to put curbs on anti-India propaganda machinery and to expose them.”
“The course correction was made from time to time to defeat the nefarious designs of anti-national elements, who are changing their trends to deceive the security forces, first by choosing the targets with clean records and later on radicalising them to resort to activities which suit them to accomplish their nefarious designs,” a police statement said.
Besides, authorities have also impounded the passports of hundreds of people, including politicians, religious leaders, academics and journalists, on grounds which have sometimes not been specified by the police.
In August 2023, Peoples Democratic Party president Mehbooba Mufti’s daughter Iltija Mufti was issued a regular passport after a long legal battle with the government’s decision to deny her passport over an adverse report by J&K police which was classified ‘top secret’ under the provisions of Official Secrets Act.
Itlija had alleged that she was pressured to withdraw from the legal battle while accusing J&K Police’s CID team of “gross misconduct and abuse of power by weaponising passports”.
Speaking to The Wire, she said, “The ruling makes a very important point that you cannot punish a person for the subversive acts of another, even if they are related. I hope the CID submits the report in accordance with the court judgement within four weeks so that it becomes a basis for other victims to further their cases.”
