Tl;dr
Part I of the Recap summarizes the arguments made by the petitioners and the government about statutory compliance of the orders issued under the Telecom Suspension Rules 2017 and Section 144, Cr.P.C. The orders under the Telecom Suspension Rules 2017 were assailed by the petitioners for lacking application of mind, being issued by an unauthorized official and for not being reviewed by the Review Committee constituted under the Rules. The government defended the orders by emphasizing that they were confirmed by the competent authority under the Rules and it was necessary to shut down communication channels because terrorists use voice and data services to spread fake propaganda and incite masses. The orders under Section 144, Cr.P.C. were challenged by the petitioners for being unacceptably vague as they all use the same boilerplate language without mentioning any specific reasons necessitating their issuance.The government responded by urging the Court to not scrutinize the language of the orders too strictly because district magistrates are not legally trained persons. It also referred to various allegedly secessionist speeches made by political leaders in Kashmir which had the potential of inciting public disorder, and it argued that such provocative speeches along with undisclosed intelligence inputs demonstrated the necessity of imposing restrictions under Section 144, Cr.P.C.
First let’s get the facts straight
On 5 August 2019, a complete communication shutdown was imposed in the Kashmir valley region of the erstwhile State of Jammu and Kashmir. All landlines, voice calls, SMS services, broadband internet and mobile internet were shutdown in Kashmir. According to the government’s own figures, this complete blackout continued till 17 August when 8365 landline connections were restored out of a total of 43,114 connections. Landlines were completely restored in Kashmir only on 4 September, almost an entire month after the imposition of the communication shutdown. As on date, in Kashmir, landlines are functioning and voice call facilities on postpaid mobile connections have been restored. However, prepaid mobile connections and SMS services (which are essential for receiving One Time Passwords) remain suspended.
In addition to the communication shutdown, movement restrictions were also imposed in Kashmir on 5 August through orders passed under Section 144, Cr.P.C. While the government claims that the orders passed under Section 144, Cr.P.C. only prohibit public gatherings and not movement of individuals in general, the text of the orders filed by the government suggest otherwise. Don’t believe us? Well, see a sample for yourself.
According to the government’s affidavit, day time movement restrictions were eased in 35 out of 105 police stations in Kashmir on 17 August and they were completely removed in all 105 police stations only by 27 September, which is almost two months after their initial imposition on 5 August. However, even as on date, there continue to be night time movement restrictions in certain areas.
Introducing the Cast
During these hearings, the Supreme Court heard two different petitions. The first petition was filed by Anuradha Bhasin, who is the Executive Director of Kashmir Times and it focused on how the restrictions on communication and movement violated the freedom of the press in Kashmir. The Foundation for Media Professionals, Indian Journalists Union, Tehseen Poonawalla and Soyaib Quereshi also intervened in Anuradha Bhasin’s petition to support press freedom. The second petition was filed by Ghulam Nabi Azad and raised concerns about the impact of the restrictions on the right to healthcare, education and livelihood.
Anuradha Bhasin was represented by Vrinda Grover and Ghulam Nabi Azad was represented by Kapil Sibal. The intervening journalistic bodies, Foundation for Media Professionals and Indian Journalists Union were represented by Dushyant Dave and Huzefa Ahmadi respectively. The other intervention application filed by Tehseen Poonwalla and Soyaib Quereshi was argued by Meenakshi Arora.
From the government’s side, the Union of India was represented by Attorney General, KK Venugopal, and the Former State of Jammu and Kashmir was represented by Solicitor General, Tushar Mehta. The Press Council of India also intervened in the matter and while its counsel refused to state which side it was supporting despite being questioned by the judges multiple times, it argued in favour of adopting a weaker version of the proportionality standard which would subject the restrictions in Kashmir to less rigorous review.
Are the orders legal?
Before we start, remember that there are two sets of orders issued by the government imposing restrictions in Kashmir. First, there are orders issued under the Telecom Suspension Rules 2017 which are responsible for suspension of landline, voice calls, SMS services, broadband internet and mobile internet in Kashmir. Second, there are orders issued under Section 144, Cr.P.C. imposing restrictions on movement of the public in Kashmir. It should be noted that none of these orders were made publicly available by the government and they were produced during the court proceedings after repeated requests by the petitioners.
(i) Orders under Telecom Suspension Rules 2017
The petitioners argued that these orders demonstrate lack of application of mind before suspension of telecom services. For instance, one of the orders states that landlines should be shut down because there is “apprehension of misuse of data services by anti-national elements.” Shutting down landlines on this ground is absurd because landlines can only be used for one on one voice calls and they have no relation to data services and the internet. The petitioners further submitted that these orders were invalid because they were issued by the Inspector General of Police who is not authorized under the Rules. It should be noted that while the orders were confirmed by the Home Secretary who is the competent authority under the Rules, the government has not placed on record any document which authorized the Inspector General of Police to issue these orders in the first place. Moreover, despite being repeatedly sought by the petitioners, the government did not place on record any information about whether the orders were reviewed by the Review Committee constituted under the Rules, and if so, what were the findings of the Review Committee.
The Solicitor General did not specifically address any of these procedural violations in his oral arguments and merely submitted that the orders were confirmed by the Home Secretary who is empowered to suspend telecom services under the Rules. He argued that based on past experiences, it was known that voice and data services were used by terrorists and separatists to incite the masses, and therefore, it was necessary to shut down communication channels.
(ii) Orders under Section 144, Cr.P.C.
The petitioners argued that by restricting the movement of the general public, the orders issued under Section 144, Cr.P.C. made it impossible for residents of Kashmir to access hospitals, schools, markets etc. Further, the orders are unacceptably vague and they all use the same boilerplate language without mentioning any specific reasons necessitating their issuance. On the legal aspects, the petitioners submitted that orders under Section 144, Cr.P.C. can be issued only if there is objective material corroborating the government’s subjective threat perception, and the threat to public order or the security of the state must be imminent and genuine.
The Solicitor General made extensive submissions to justify the orders issued under Section 144, Cr.P.C. He urged the Court to not scrutinize the language of the orders too closely like a statute because they were not issued by legally trained persons. The government submitted that the district magistrate does not have an obligation to state any material facts in the order and it is sufficient if he merely records that there is a law and order situation in the area.
The Solicitor General referred to allegedly provocative and secessionist comments made by political leaders such as Mehbooba Mufti and Omar Abdullah which could incite violence and submitted that such comments alongwith other undisclosed intelligence inputs formed the objective basis for issuance of orders under Section 144, Cr.P.C. He argued that Section 144, Cr.P.C. permits the government to take preventive action in anticipation of danger, and therefore, the present restrictions which were intended to prevent incitement of violence and mass mobilization were valid in the facts and circumstances of the case.
Stay tuned for Part II of the Recap which will summarize the arguments made by all parties about whether these restrictions on communication and movement pass constitutional muster under Article 19 and 21. (Edit: Read Part II here.)