Communication Restrictions in Jammu and Kashmir: Live Updates from Supreme Court

The Supreme Court is presently in the midst of hearing a batch of petitions concerning the situation in Jammu and Kashmir following the abrogation of Article 370 of the Constitution..The matters relate to restrictions imposed on the press and communications in Kashmir. The pleas are being dealt with by a Bench of Justices NV Ramana, R Subhash Reddy, and BR Gavai..Live Updates from today’s hearing follow.Supreme Court resumes hearing the cases relating to communication shutdown in Kashmir.Senior Counsel Meenakshi Arora making her submissions for intervenors.Arora cites precedents to submit that any order or law cannot have the force of law if it is not published or promulgated.Arora: If orders/laws are passed on August 5 and the communication and press have all been suspended from August 4, these orders are not published in a reasonable place. This is an aspect which also needs to be considered by the Court.Arora: On August 4 people of their country are not aware that on August 5 there will be a move for abrogation of Article 370 in the Parliament. The situation that the Court needs to see is the situation that was present on August 4 and there was nothing out of the ordinary on that day.Arora: The officers who passed the orders (relating to communication lockdown) on August 4 could not have presumed what might have happened on August 5.Justice Gavai: Your argument is that the Magistrate has the power to pass Section 144 orders and it appears that the Magistrates were under some dictate by the State Government?; Arora: Yes.Arora: Expediency is not a standard, necessity is the standard. In a democratic society, necessity has a very different test. Arora cites Rangarajan case which held that Article 19(1)(a) can be restricted subject to 19(2) only when there is necessity.Arora: People had the right on August 5 to say if they were in favour or against the orders. Peaceful protests are a known and valid form of demonstration in a democratic society.Arora: On proportionality test, will rely on Om Kumar judgment.Arora: Puttaswamy judgment lays down the four step test for proportionality which could have been applied in this situation.Arora: There was high Police presence and complete restraint on their right to move freely and this creates a fear in the mind of the citizen and this fear leads to an inert citizen. And a democracy cannot afford to have an inert citizen.Arora cites the opinion of Justice Subbarao in Kharak Singh judgment which was upheld in the privacy judgment.Arora gives the example of the protests in Hong Kong where the Courts had held that the citizens had the right to cover their faces with masks and protect their identity. The situation there was far more adverse than anywhere else.On Arora’s citing of Hong Kong judgment, Justice Ramana says: The Supreme Court of India is far more superior in upholding the fundamental rights of the citizens.Arora: Just drawing an analogy here. The protests were peaceful and test of proportionality was applied; Justice Gavai: Is there a problem of cross border terrorism in Hong Kong?Arora: The problem of cross border terrorism in Kashmir is present only in limited areas of the region but the entire population of the region is being put under restrictions.; Justice Ramana: It is your argument that it is like the entire population of Kashmir is being treated like terrorists?Senior Counsel Meenakshi Arora concludes her arguments.Senior Counsel Sanjay Hegde begins making his submissions for a Kashmiri citizen who had sought permission to travel to Kashmir to visit his family..Hegde: I had filed my affidavit upon returning in a sealed cover because if I had said anything, one of the two sides would have objected to it.; Justice Gavai: So you agree there are two sides?Hegde: Yes. But me and my family have been law abiding citizens like most of the people of the State and yet all this (the restrictions) have been imposed on people like usHegde cites Lord Atkin’s dissent in a British judgment of Liversidge v. Anderson when there was a threat of German aggression. Lord Atkin had said that the law is not silent even at the time of war.Solicitor General Tushar Mehta begins his submissions on behalf of Jammu and Kashmir Mehta: First and foremost duty of a responsible government is to protect the life and security of the people.Mehta: It was in discharge of the Constitutional obligation of the government to protect the citizens. My argument is eventually going to be that the rights of the people have not been taken away but have been conferred for the first time in 70 yearsMehta: Dealing with a situation where the dissent or revolt is not from within but we are a victim of cross border terrorism where the terrorism is not only physical but also digital. Cross border terrorism takes help from locals who have secessionist mindsetMehta cites figures relating to violent incidents and casualties in Jammu and Kashmir since 1990 that are mentioned in the counter affidavit filed by the Centre/Jammu and Kashmir to submit that the situation suggested the need for the final decision on A.370Mehta: Want to show what are the rights not snatched but conferred on the people for the first time since 70 yearsMehta: Minimal restrictions were imposed to protect the life and property of the people from the minuscule minority. Everything is normal except internetMehta lists down the effect of application of the entirety of the Constitution of India to Jammu and Kashmir. “This will lead to grassroots democracy”Mehta speaks about the effect of the decision to abrogate Article 370 on local panchayats, safai karamcharis, Scheduled Castes and Scheduled Tribes communities and reservation for themMehta: Rights of women marrying outside of the State will be protected.Mehta: 106 people friendly laws which were not applicable earlier will be applicable nowMehta: Right to Education was not applicable earlier but not a single public spirited person came before the Court to say please make RTE applicable for the children of Kashmir.Mehta: Public assembly was restricted, individual movement was not restricted. Sometimes the Court is misled Justice Gavai: Mr. Sibal pointed out that there was no mode of transportJustice Ramana: Orders for prohibition were passed locally or for entire districts? Mehta: The argument that through one mandate entire region was put under restrictions is wrong. The decisions were based on the intelligence of the local officials and police station wiseMehta: By September 4 all landlines were restored.Mehta: In areas of seven police stations (of Jammu, Kashmir, and Ladakh – erstwhile State of J&K) there were no restrictions from Day 1. This shows application of mind. Restrictions were not imposed mechanicallyMehta gives date wise lowdown of relaxations in restrictions. Telephonic communication has started. SMS and internet have not, which I will deal with separatelyMehta: Petitioners have repeatedly said ‘100 days the entire region is in lockdown’. They should have pointed out situation on ground. The petition has outlived its need yet Petitioners said ‘forget today, decide as on 5th August’, which shows they were aware of relaxationsMehta: This was application of mind. There was no absolute clampdown as was projected neither was their absolute relaxationMehta: Schools substantially opened by Aug 27 and 100% opened on October 23Mehta: There were no restrictions in Ladakh which was part of the State. Each area was assessed based on threat perception and past history based on the information of officials who are on groundMehta: Majority of citizens are peace-loving and it was the duty of the government to protect this majority against the instability that the minuscule minority could causeMehta: In PIL, I always say, it is not adversarial litigation. We all assist the CourtMehta: There is misleading discourse going on that students are not going to schools. But 99.48% of the students of appeared in the examination which was held as per scheduleMehta: Medicines, food for children is available. Mehta lists down the figures regarding availability of essential materialsMehta: Govt for the first time intervened in the purchase of apples through NAFEDMehta: This (restrictions) is a temporary measure taken.Mehta: Internet is available in tourist places in specific spots for certain number of computers. And tourists are going.; Justice Gavai: Tourists just started going there or they didn’t stop; Mehta: There may have been some slump in tourism earlier on account of restrictionsMehta: Newspapers have been publishing from Srinagar except by the petitioner (@AnuradhaBhasin_) in this case who chose to publish from Jammu.Mehta: I’m alleging that she has chosen not to publish her newspaper from Srinagar. It is her volition to publish from Jammu perhaps to continue with her contention that everything is shut in the valley.Bench rises for lunch..Post Lunch Updates.Solicitor General Tushar Mehta resumes his arguments on behalf of Jammu and Kashmir.Mehta (On public transport): We have mobilised public transport since a week after August 5. All types of public transport are on the move on all routes.Mehta: Government has put a scheme (Ayushyaman Bharat) in place where cashless facility for availing healthcare can be taken benefit of. Total number of cases under this scheme from Aug 5 till date 11,468 cases on transaction management system.Mehta: We are alive to the problems and we have dealt with the problems. The common man is not suffering.Mehta: The allegation (of people being unable to access healthcare facilities in the valley) has been made on the basis of a report on the website IndiaSpend. The website IndiaSpend was caught spreading misinformation. Mehta places reliance on a report by OpIndia to make this submission..Mehta: Your Lordships are the custodians of the rights of those citizens of Kashmir whose rights will be affected if the reliefs sought are granted.Mehta: Steps have been taken to ensure that several newspapers are published from Kashmir. Mehta goes on to list the number of newspapers published from the valley.Mehta: Media centres are in place for the benefit of journalists who could access internet up till 11 in the night.Mehta: Channels were being broadcast and regular press briefings were held for dissemination of information.Mehta: The Petitioner (Anuradha Bhasin) has deliberately chosen not to submit true facts. She has been publishing her newspaper from Jammu and has chosen not to publish from Srinagar.Mehta quotes figures relating to minor and major surgeries and other medical procedures conducted in healthcare facilities in the valley.Mehta: This shows that there is normalcy on the ground and not what is projected that “100 days everything is under shutdown.”Mehta cites the judgment of a five Judge Bench in Babulal Parate vs State of Bombay on the point of validity of Section 144 orders.Mehta: There is a tendency to rely on foreign judgments. But the jurisprudence in countries like US is different, particularly regarding free speech which is absolute in the US but is subject to reasonable restrictions in India.Mehta (citing a judgment): We are in a completely different jurisprudence from that of the US. There is nothing in the US Constitution corresponding to reasonable restrictions.Mehta: There (in the US), burning of the national flag is considered as freedom.of expression. Journalists in the US may publish the name and identity of a rape victim of they have received it from an officialMehta (On argument that all of Kashmir citizenry is treated as terrorists): It is difficult to differentiate between separatists, secessionists, terrorists, and general public. Several times terrorists from across the border come wearing military uniformMehta seeks to continue his arguments on the next date. Attorney General begins to make arguments.AG KK Venugopal: The past record of a person shows what action needs to be taken against him in the future. The past record of Kashmir shows there were a number of terrorist activities. (AG cites figures of terrorist actions, fatalities et al since the year 1990).Venugopal: In 2016, when Burhan Wani was gunned down by Security Forces, internet facilities were shut for three months.Venugopal cites the judgment of the Supreme Court in the case of NIA vs Zahoor Watali. Venugopal: It is clear from the findings of the designated Court in Watali case that Pakistan has been pushing in terrorists. Our we to ignore all this and hope everything will be peaceful?Venugopal: It would have been irresponsible if preventive action to prevent Pakistani activities through Hurriyat was not taken.Venugopal: Cellphones were used by elements like the Hurriyat to gain gathering of thousands of people at the push of one button.Venugopal mentions the 2018 order of the Supreme Court in the case relating to Shopian firing where the Court directed for the probe against Major Aditya to be put on hold.Venugopal: GOI should be congratulated for the manner in which this (the move of and the aftermath of abrogation of Article 370) was handled without even a single bullet fired, without any life lost.Venugopal: This is why I urge for this to be viewed in a broader perspective and not the nitty-gritty of Section144 orders etc.Venugopal concludes.Bench rises for the day. Hearing in the case to continue on Monday, November 25 at 12pm..Read an account of the November 5 hearing here, , of the November 6 hearing here and the November 7 hearing here. An account of the hearing held on November 19 can be read here. .Also Read: Kashmir: Will Centre impose Section 144 across the country so that no murders take place? Dushyant Dave.Bar & Bench is available on WhatsApp. For real-time updates on stories, Click here to subscribe to our WhatsApp.