A cellphone signal at the end of the tunnel? SC may finally hear substantive challenges to telecommunications shutdown in Kashmir around November

Tl;dr

Anuradha Bhasin, the Executive Editor of Kashmir Times, had filed a petition before the Supreme Court challenging the constitutionality of the communication shutdown in Kashmir. Two journalistic bodies- Foundation for Media Professionals and Indian Journalists Union- had intervened in the case to support press freedom in Kashmir. Yesterday, the State Government filed an additional affidavit stating that the communication shutdown was necessary because of cross-border terrorism and it has declined to provide any further explanation or materials to the Petitioner or Intervenors.

State Government files Additional Affidavit

On the factual aspects, the Government has argued that Jammu and Kashmir has a history of cross-border terrorism and the communication shutdown is necessary because terrorists "not only physically penetrate the Indian borders" but also "digitally penetrate to take advantage of certain local situation." The Government has also cited the three month long internet shutdown imposed in the State in 2016 after the death of Burhan Wani to cast aspersions and demanded that the Court seek an explanation from the Petitioner about why she did not approach the judiciary then.

With respect to production of orders, the Government has annexed specimen orders which do not provide any clear reasons for their issuance. The specimen orders are extremely vague and merely state that data services should be suspended or slowed down to 2G speed "in view of apprehension of misuse of data services by anti-national elements." The Government has characterized the demand for production of orders as a "roving and fishing enquiry" which must not be permitted. The Government has also strenuously objected to the Petitioner and Intervenors being provided access to the material based on which these orders have been issued but has agreed to let the Court view it.

Regarding the applicable legal standards, the Government has urged the Court to defer to the opinion of the administrative authorities in Kashmir because they are aware of ground realities and such decisions always involve an element of subjectivity. Further, the Government has cited a case in which the Supreme Court upheld a complete ban on the slaughter of bulls and bullocks (State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat) to argue that a total prohibition on exercise of fundamental rights is justified if there is no lesser adequate alternative. Finally, the Government has reiterated its stance that the communication shutdown was a temporary and need based restriction which was aimed at "pre-empting inflammation of passions, rumour mongering etc."

Supreme Court adjourns matter for oral arguments

Although the case was originally supposed to be heard on Friday, 25 October 2019, it was unexpectedly listed a day earlier. To the best of our knowledge, the change happened because the judges were busy with another matter tomorrow. The Court indicated that since all parties have filed their pleadings, the lawyers could commence their oral arguments on the next date and listed the case for hearing on 5 November 2019.

During the brief hearing, the Court indicated that the Solicitor General should provide a clear time frame for easing of restrictions, and even if the restrictions were justified in public interest, they should be periodically reviewed. The Counsel for the Petitioner, Ms. Vrinda Grover stated that the orders of the Review Committee should be produced if the Government is claiming that it is constantly monitoring the situation on the ground. In response, the Solicitor General raised the specter of cross-border terrorism again and criticized the Petitioner and Intervenors for acting like ostriches with their heads in the sand. He also launched ad hominem attacks against the Petitioner and Intervenors and sought an explanation about why they did not approach the Court when internet was suspended in Kashmir for 3 months in 2016 after the death of Burhan Wani.

As internet services continue to remain suspended in the Kashmir Valley, we hope that a substantive hearing on merits will take place on 5 November 2019. The Government's approach so far has been vaguely citing "national security" and delaying effective adjudication of the dispute by refusing to disclose any relevant or  specific information. Without access to specific information about actual incidents threatening sovereignty and integrity of India, security of the State or public order, it would be difficult for the Petitioner and Intervenors to demonstrate the unreasonable and disproportionate nature of the restrictions. Therefore, the Court must direct the Government to at the very least provide aggregate facts and figures about the ground reality in different districts of Kashmir and the burden should be placed upon the Government to prove how each piece of relevant information which is being withheld can threaten national security.

Important Documents

  1. Additional Affidavit dated 23.10.2019 filed by State of Jammu and Kashmir (link)

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