By Amritananda Chakravorty
On 27th November, 2019, following almost two weeks of hearing, the Supreme Court reserved its judgment in the slew of petitions filed by citizens and political leaders challenging the complete restrictions on internet communications and mobility in Jammu & Kashmir, after the abrogation of Article 370 of the Constitution on 5th August, 2019. The petitioners mainly included Anuradha Bhasin, Editor of Kashmir Times; Ghulam Nabi Azad, senior Congress leader from Kashmir; and Asifa Mubeen, amongst others. Even after almost four months of lockdown, wherein 7 million Kashmiris are literally living a military seige, the Supreme Court has dealt with these petitions in the most cavaliar and casual fashion, with no importance given to the urgency of the situation,
Advocate Vrinda Grover appearing for Anuradha Bhasin argued that there had been complete communications lock down in Kashmir, since 5th Aug, 2019, with phone and internet services being shut down, thereby crippling the functioning of media organisations. Though the internet shutdown orders were made under the Telecom Services Suspension Rules, framed under the Indian Telegraph Act, 1885, these restrictions could be imposed only for temporary periods for specific reasons, and such restrictions had to be reviewed periodically. Further, the orders were passed by Inspector General, which is not allowed under the Rules, wherein only the Central or State Home Secretary can pass such orders of shut down. The police has no authority to issue media shutdown orders under the Act. She also challenged the restrictions on movement and prolong curfew measures as disproportionate and violative of basic fundamental rights of citizens.
Thereafter, Ghulam Nabi Azad’s lawyer Kapil Sibal made submissions challenging the restrictions as illegal and unlawful, since the lockdown of an entire State could be done only as an emergency measure under Article 352 of the Constitution. Orders issued under Section 144, CrPC could not be used to impose de facto emergency on the whole State. The restrictions imposed on communications, movement of people, and overall curfew measures in the entire State were unreasonable and disproportionate, and cannot be justified under Article 19(2) of the Constitution. It is well-settled that once the imposition of restrictions is prima facie established, the burden of proof shifts on the State to prove that the restrictions were reasonable. It was further argued that fundamental freedoms under Article 19(1) could be curtailed only by law, and not by executive action, and one has to adhere to the condtions prescribed under Section 144, CrPC along with the Indian Telegraph Act.
In their response, the Union Government argued that most of the restrictions imposed under Section 144, CrPC had been lifted from 195 police stations, while all the landline numbers were functioning, alongw with some post-paid numbers. The Government admitted that pre-paid numbers were still blocked, and internet services, along with SMS services were also blocked, owing to ‘national security’ reasons. The Solicitor General (‘SG’) argued that social media was being used to ‘fuel’ cross-border terrorism, and had been justifiably restricted. With respect to orders under Section 144, CrPC, the SG argued that such orders had been issued by individual police stations, based on ground realities, and could not be termed as unreasonable restrictions. The thrust of the government’s argument was that restrictions were minimal, and required to maintain ‘peace’ in the State.
Whatever may be the outcome of this case, the biggest loss of face had happened to the institutional integrity of the Supreme Court of India, which took more than 90 days to start hearing the petitions affecting the life and liberty of 7 million citizens of India. Some of the initial hearings in the Kashmir petitions have been utterly farcical, wherein the Supreme Court asked people like Azad and Sitaram Yechury why they needed to visit Srinagar, or they could utter any ‘political’ comment in Kashmir or speak to the media, or that they had to report back to the Apex Court, after their visit. The lack of urgency in having substantive hearings was in complete contrast to the huge rush in which the Ayodhya hearings were completed in August-October, 2019 in a marathon sitting of 40 days.
Both the people of Kashmir and India are on the verge on losing their faith in the judicial institution, especially the Supreme Court, owing to its spectacular failure in protecting the rights of its citizens, whether in Kashmir, Assam or in Ayodhya verdict. The ball is now in the Apex Court’s domain if it wants to regain the legitimacy of public in the administration of justice in India. As Justice (Retd.) Madan Lokur recently remarked, the Supreme Court ought to urgently restore its credibility and stature, otherwise it would result in the “death knell of the independence of judiciary”. One hopes that these wise words would be paid heed to by the Supreme Court as an institution, and its judges. (IPA Service)