New Delhi: The Supreme Court Friday ruled that the communication restrictions imposed by the central government in Jammu and Kashmir need to be reviewed forthwith, and that any suspension of internet services for indefinite period would be subjected to judicial scrutiny.
The ruling comes as Kashmir enters the fifth month of communication lockdown after the Narendra Modi government scrapped Article 370, which granted special status of the erstwhile state, on 5 August and announced its bifurcation into two Union territories.
A three-judge bench of the Supreme Court was hearing a batch of petitions, including by Congress leader Ghulam Nabi Azad, challenging the restrictions.
The bench headed by Justice N.V. Ramana said an order to suspend internet for indefinite period is not permissible. “There would be a committee to conduct periodic review of the suspension order,” the court said, noting it would be weekly in nature.
The central government had imposed severe restrictions on communications, particularly mobile internet, and movement in Jammu and Kashmir after it scrapped Article 370.
One of the major contentions of the petitioners was that suspension of internet services was a violation of fundamental rights. The SC ruled that expression through internet has gained contemporary relevance and is part of freedom of expression under Article 19. However, the court said, this right would be subject to reasonable restrictions.
The court said whenever the government decides to suspend internet, it must give detailed reason for the decision to allow aggrieved persons to challenge it in appropriate court. A complete shutdown of internet is a drastic measure, and the government can resort to this only when there is no other alternative to deal with a situation, the judges ruled.
It also asked the government to consider allowing access to government websites and e-banking facilities in J&K. Certain trade and commerce are completely dependent on Internet. Such trade and freedom to practice then is constitutionally protected as a fundamental right under Article 19(1)(g), the court said.
On the imposition of Section 144, the court ruled that the section “can’t be used as a tool to oppress difference of opinion..”
The top court also dismissed the refusal stated by J&K administration to produce all relevant orders issued in Jammu and Kashmir after scrapping of Article 370.
What the petitioners argued
The court’s move came after Anuradha Bhasin, editor of news daily Kashmir Times, and political analyst Tehseen Poonawalla moved a PIL on 10 August seeking immediate directions for the removal of restrictions imposed on media, communication and the free movement of people in Jammu and Kashmir.
The Supreme Court started regular hearings on 5 November.
During the hearings, advocate Vrinda Grover, representing Bhasin, had argued that the restrictions were “unconstitutional” and the curbs needed to pass the test of proportionality.
Senior advocate Kapil Sibal, representing Ghulam Nabi Azad, had argued that an entire populace of 7 million “cannot be locked down”. He added, “The real question is, can life be stopped for 100 days? Post winter, life already stops in the region.”
Sibal also raised concerns over orders related to continuous restrictions in the state not being shown on record. “We want all the orders to be placed on records… If restrictions were lifted during night, then also there must be an order.”
What the state argued
Solicitor General Tushar Mehta, representing the Jammu and Kashmir administration, clarified in the Supreme Court that Section 144 was imposed in the erstwhile state after Article 370 was scrapping and no fresh orders were passed after that with respect to restrictions.
Mehta also said restrictions in Jammu and Kashmir are imposed only during night time.
However, a preventive bid to stop possible terror and violence in the aftermath of the government decision was the main justification it had to offer on restrictions.
Mehta argued that over the past years, terrorists were being pushed through from across the border, and local militants and separatist organisations had held the civilians in the region captive. It would have been “foolish” if the government had not taken preventive steps to secure the lives of citizens, he said.
However, Kapil Sibal challenged this. “Past cannot be changed, it is about the future. If we don’t lay down the principles that uphold the democracy and national security of the country it will be a problem.”
During the course of the hearings, senior advocate Sanjay Hegde also pointed out that the Supreme Court itself had in one of its orders in September urged the government to restore “all forms of communication”. “All forms of communication does not mean just landlines alone, but Internet too.”
However, Justice Gavai pointed out to Hegde that the very same order had also urged the government to keep national security in mind before restoring full-fledged connectivity to J&K.