Communication Lockdown in Jammu & Kashmir: Live Updates from Supreme Court
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Communication Lockdown in Jammu & Kashmir: Live Updates from Supreme Court

Bar & Bench

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:

Solicitor General Tushar Mehta resumes his submissions

  • Tushar Mehta cites the judgment in the Babulal Parate case on the issue on preventive action as under Section 144.
  • Mehta cites examples of some political speeches which could have stirred sentiments in the region. Mehta clarifies that politicians have the Right to Freedom of Expression.
  • Mehta cites the example of statements made by PDP leader Mehbooba Mufti who had spoken out in support of Articles 370 and 35A and had said that should the special status of J&K be changed, the result could lead to adverse effect.
  • Mehta says Mehbooba Mufti had said that the relationship of Kashmir with India would become similar to that of Israel and Palestine if the special status is revoked.
  • Mehta reads out incendiary tweets put out by some Separatists and Hurriyat members. These are some of the things which may help me justify the Internet shutdown.
  • Mehta: The submission that the internet was shut in the entire State is incorrect. The Internet is operating in Jammu and Ladakh.

  • Advocate Vrinda Grover: We spoke about Kashmir valley and border regions
  • Mehta making arguments on the aspect of effect and reach of social media
  • Mehta tells the Court that the reach of social media messages is multiplied by using hashtags. Justice Ramana inquires what hashtags are.
  • ASG Vikramjit Banerjee explains to the Court how hashtags function on social media platforms like Twitter and Facebook
  • Mehta: The purpose of restricting the internet in the region is to prevent flooding of messages from actors across the border
  • Justice Ramana asks about the report in Economic Times which says that people in Kashmir were given internet access after giving some undertaking.
  • Mehta cites tweets made my Pakistan’s Major General Asif Ghafoor in support of the “indigenous struggle of Kashmiris and calls for violence against the Indian State”.
  • Mehta says all these messages from across the border, from mainstream politicians, Hurriyat leaders et al could lead to affecting public tranquility and peace
  • Mehta: These are exceptional situations that needed exceptional remedies
  • Mehta: What is the level of restriction required is essentially left to the officials on the field unless it is palpably visible that the order is arbitrary. These are based on facts of each situation
  • Mehta: There were restrictions on public assemblies and congregation, there was no restriction on the movement of individuals.
  • Justice Ramana summarising Mehta’s submissions: So you are saying that there was no restriction of individual movement but only on movement in groups.
  • Mehta seeks to submit some material before the Court in a sealed cover. Grover seeks to intervene in this issue.
  • Mehta: There is a growing tendency for people to publish articles, write tweets and form an opinion before any sensitive case is taken up by the Court. Sometimes even persons of this fraternity play into this trend.
  • Mehta: This (sealed cover material) is information from Government source and is sensitive
  • Justice BR Gavai inquires: If there is sensitive material (in sealed cover) concerning national security and the government seeks privilege over it, what objection do you have on Court perusing the material? Grover: We have no problem. But they should claim privilege.

  • Grover: If the material in the sealed cover is concerning the basic issue of the petition then we are handicapped as regards replying on the material. If that is the material the Court will base the judgment on, then how will we address the Court on it.

  • Senior Advocate Huzefa Ahmadi (for an intervenor): The law allows them to claim privilege. They may file an application seeking privilege. Justice Reddy: If technicality is to be followed then even intervenors have a limited scope but you have been given detailed hearing
  • Kapil Sibal suggests the sensitivity of the material to be assumed in a case as sensitive as this. Sibal: Let us assume privilege. That there will one interference from across the border, we all know so the Court need not rely on sealed cover material
  • Court agrees with Sibal’s proposal that privilege of the material will be assumed and the Court not to peruse the material sought to be submitted in a sealed cover.
  • Justice Ramana: One of the contentions is press people are unable to go to certain places, so have you given any special permissions to media persons? Mehta: Yes, media persons have been given permissions since 7 Aug, they have a media convention center which has internet.
  • Mehta: Social media is used as one of the most powerful tools to spread terrorism. Mehta reads out passages from certain articles on the role of social media in modern terrorism
  • Mehta: Sometimes morphed images from what is happening in PoK is circulated on the internet as incidents in J&K. Grover suggests that while this is a menace, here exist cyber cells to verify what is morphed and what is authentic.
  • Grover: In fact, women face a lot of problems because often morphed images are used to sexually harass them and it’s a huge problem but that doesn’t mean that the whole medium should be shut down. A solution should be found.
  • Mehta now talks about the dark web and its nexus with terrorism and explains to the Court that clandestine activities take place on the dark web where even things like AK47 guns can be purchased.
  • Mehta talks about the Telegram App used for transmitting messages. Mehta: Telegram is an app, not the kind of telegram we used to use earlier. This is like WhatsApp. Justice Gavai: And it is more secure than WhatsApp? Mehta: It is believed to be.
  • Mehta cites the difference between newspaper as a medium and internet and says the same precedents applicable to newspapers cannot be applied here
  • Bench rises for lunch

Post Lunch Updates:

  • Bench assembles and the post lunch session begins.
  • Solicitor General Tushar Mehta resumes his arguments. Begins by telling the Court that accredited journalists have had access in the region since. Media Centre had unrestricted internet access for press persons.
  • Mehta: Competent authority under Section 144 of CrPC of Section 5 of Telegraph Act had enough and cogent material before it based on which decisions were taken.
  • Mehta: Decision of the Hong Kong High Court case was cited. But Hong Kong does not have a cross border terrorism problem. It was a case of protests and strikes. This is like comparing apples and oranges
  • Mehta: Least intrusive measures were used. Not a gun used, not a bullet fired, not a single life lost due to firing. Majority of the people in Kashmir are happy.

  • Justice Reddy: Is there Section144 imposed still? Mehta: Not in the day time.. it’s imposed in some areas at night time.
  • Mehta tells the Court that social media was used to spread rumours against the government, rumours such as “government trying to kill children through poisoned polio vaccines”, “LED bulbs in street lights fitted with cctv cameras”, and such.
  • Justice Ramana inquires about the Economic Times news report pointed out by Court earlier today regarding permission of internet access given to some entities after signing of a bond. Mehta says he will take instructions on the same. Meanwhile, intervenors to make submissions.
  • Counsel for one of the intervenors supporting the government’s move hands over copies of the book ‘Our Moon has Bloodclots‘ by Rahul Pandita.
  • Counsel for Press Council of India, one of the intervenors on the Centre’s side, cites the Aadhaar judgment on doctrine of proportionality.

Rejoinder Submissions 

  • Advocate Vrinda Grover begins to make rejoinder arguments.
  • Justice Ramana: In all fairness, you should have brought it to the Court’s notice (with respect to the relaxations and publication of Kashmir Times from Srinagar).

  • Grover: Through one of the affidavits, we had placed on record that publication of newspaper was done from Srinagar but these were truncated versions of the newspapers.
  • Kapil Sibal arrives in the Courtroom and to make the rejoinder arguments for the Petitioners.
  • Sibal: The purpose of Article 19 is to balance the rights. This is why i have been asking why landlines were required to be shut down, why children did not go to school.
  • Sibal: It was said that on board exam day, 98% children appeared but what choice do they have? They will lose a year.
  • Sibal: I understand if Article 352 is imposed. And SG said that most people in Kashmir are peaceful and rightly so. But let those peaceful people come out, use transport services, Internet.

  • Sibal: So many people are carrying our their businesses through internet and internet is shut. And internet is not social media alone. Block specific sites, or social network sites but there is no occasion to block other things.
  • Sibal: I cited a report from IndiaSpend and it was said that this gives fake news. And who said it… OpIndia, which is described as being pro-government.

  • Sibal: Instead of asking the doctor from Kashmir why he made the statement on Ayushyaman Bharat scheme, they relied on OpIndia whose application for certified fact-checker was rejected for poor method of fact checking and being partisan.
  • Sibal citing news reports from national dailies of India to say that local buisnessmen and farmers have suffered huge losses.
  • Sibal: There cannot be a law that paralyses 7 million people.
  • Sibal: Children had not been going to school because of security concerns and the State has not provided security.
  • Sibal: Figures are given of how many people were treated in September but these figures have to be compared against other months to assess the actual situation.
  • Sibal: The procurement of apples by NAFED was only to the tune of 8,000 metric tonnes whereas projected production was 12 lakh metric tonnes. The NAFED procurement was 0.01% of the estimated production. And apple is not the only crop there.
  • Mehta intervenes to point out, out of 12 lakh metric tonnes, over 11 lakh metric tonnes was exported. Sibal: Yes, exported at throwaway prices through private efforts because they could not be sold.
  • Bench rises for the day. Hearing to resume tomorrow

Senior Advocates Huzefa Ahmedi, Dushyant Dave, Kapil Sibal, Meenakshi Arora and Sanjay Hegde are among those who appeared on on the petitioners’ side so far to argue against the ongoing communications restrictions.

In the last hearing Attorney General KK Venugopal and Solicitor General Tushar Mehta made arguments for the State, defending the course of action taken in view of the move to abrogate Article 370 of the Constitution.  An account of the last hearing that took place on November 21 can be read here

Also read:

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.  

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