Communications Shutdown in Jammu and Kashmir: Live Updates from Supreme Court
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Communications Shutdown in Jammu and 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.

Read an account of the November 5 hearing here, , of the November 6 hearing here  and the November 7 hearing here.

Live Updates from today’s hearing follow

  • Senior Advocate Huzefa Ahmadi making arguments on behalf of the petitioner.
  • Rest of the board in Justice Ramana’s court discharged. Only Kashmir petitions will be heard today. Petitioners submit that they will conclude their arguments today.
  • Huzefa Ahmadi continuing with his arguments. Ahmadi reading out from ADM Jabalpur and the infamous “maternal treatment of detenues” observation by Supreme Court with respect to political prisoners during national emergency.
  • Ahmadi citing dissenting judgment of Justice HR Khanna in ADM Jabalpur. The dissent of Justice Khanna is the law today after this Court categorically overruled ADM Jabalpur, Ahmadi submits.
  • Article 21 cannot be considered sole repository of life and liberty. Even in absence of Article 21 nobody can be deprived of life and personal liberty without tye authority of law, Ahmadi citing Justice HR Khanna.
  • In ADM Jabalpur, they were at least armed with Emergency. There they said detenues cannot move the Court at all. Here they are saying we can move the court but they (Govt) need not produce detentions orders or reasons on the ground of National Security, Ahmadi.
  • Essentially their argument is based on Executive supremacy, Ahmadi.
  • Section 144 order cannot be issued only on apprehension. They should give material facts based on which an opinion has to be formed, Ahmadi.
  • Ahmadi now citing case laws relating to restrictions on communication under Section 5(2) of Telegraph Act. Presumption of criminality on grounds of suspicion is no longer valid in our jurisprudence, Ahmadi.
  • Ahmadi concludes his arguments with the quote attributed to Voltaire – I may not agree with you but I will defend your right not to agree with me.
  • Senior Advocate Dushyant Dave commences arguments. He says: It should not be that all those who are appearing on this side (petitioners) are viewed as against integrity of nation.
  • Dave says it has been 106 days since restrictions have been imposed; “Are you criticising the Supreme Court for the delay”, asks Justice NV Ramana. “Not at all. I am criticising the Govt for not lifting the restrictions”, says Dave.
  • Justice NV Ramana pointing to earlier orders of Supreme Court to show there has been no delay from part of court. Dave reiterates his grievance is not against Court but against govt. Justices Ramana and Gavai questions Centre on absence of law officers in the matter.
  • “We are aware of the seriousness of the issue”, Justice Ramana; “Frankly, even submissions of the Petitioners have been repetitive”, Justice BR Gavai.
  • The rights of 7 million people are as important as anybody. They are as Indian as anybody. More so after scrapping of Article 370, Dave.
  • The govt cannot justify restrictions on the basis that it is because Kashmir has been gripped by terrorism all these years, submits Dave.
  • Look at Hong Kong. Protests have been going on for weeks but even then a Communist State has not imposed blanket restrictions like us. Only one restriction was imposed. That protesters should not wear mask and that was struck down yesterday by their Supreme Court, Dave.
  • Dave cites the sacrosanct right to remain silent and recalls his role as Amicus Curiae in a case on validity of brain mapping test, narco analysis and lie detector test. CJI Balakrishnan authored one of the most beautiful judgments on right to remain silent, Dave.
  • Bench rises for lunch. Hearing to resume at 2 pm.

Post Lunch Updates

  • Bench reassembles, hearing commences.
  • Dushyant Dave placing reliance on Constituent Assembly Debates.
  • Dave cites Dr. BR Ambedkar’s take on significance of Article 32 of the Constitution of India.
  • He (Dr. Ambedkar) had faith in this institution. That whatever happens in Parliament, this Court will step in and protect individual liberty, Dushyant Dave.
  • Today I read in paper, 10,000 people in Jharkhand in one district have been charged with sedition. We are slowly becoming a Police State, Dave.
  • Individual liberty cannot be subsumed just to have social control, Dave citing Constituent Assembly Debates.
  • They have brought these draconian sweeping orders whereby everybody is affected irrespective of whether they have a history of criminal record or not. Your Lordships have held that it cannot be done, Dave.
  • Dave citing Kerala High Court judgment in which it was held that access to Internet is a fundamental right.
  • Article 19(1)(a) supports democratic values. The restrictions envisaged in Article 19(2) are not attracted in this case, Dave.
  • Every citizen is entitled to discuss the “burning topic of the day”. That is what Article 19(1)(a) is meant for, Dave.
  • All that the Central govt have said in its affidavit is restrictions are in “national interest”. Such cavalier and casual approach. All they wanted was to buy time from court. They have not gone into the law, Dushyant Dave.
  • All that the Central govt have said in its affidavit is that the restrictions in Kashmir are in “national interest”. Such cavalier and casual approach. All they wanted was to buy time from court. They have not gone into the law, Dushyant Dave.
  • Centre’s argument is no single bullet has been fired. What kind of argument is that? So tomorrow, will they impose 144 across the country. Then no murders will take place, Dave.
  • “Centre has not argued yet”, Justice Gavai; “I am referring to their counter”, Dave.
  • These wont be my arguments, Solicitor General Tushar Mehta.; “I am not saying these are your arguments. This is from Centre’s counter. I am sure it might not have been settled under the supervision of learned counsel like you Mr. Mehta”, Dave; “It is my counter”, Mehta. 
  • Nobody really knows today the width and amplitude of restictions have been placed on these 7 million people (in Kashmir). Our media has been silent on it. But some reports have emerged in international media, Dave.
  • So Your Lordships should seek the ambit of restrictions from Centre, Dave.
  • Further, Your Lordships should consider the restrictions as they existed in August 2019 and not November 2019 because some restrictions have been relaxed, Dave.
  • August 2019 restrictions have to be considered so that Your Lordships can issue directions on what cannot be done in future by the Executive, Dave.
  • Dave also says the practice of Court accepting details in sealed cover has to stop. People have a right to know in a democracy, RTI was a big revolution, Dave.
  • Dave concludes his arguments. Senior Advocate Meenakshi Arora commences her submissions on behalf of Tehseen Poonawalla and Soyaib Qureshi.
  • Can a whole State be brought under Section 144 and people there be prevented from moving about and whether that can be continued for a long period of time, Meenakshi Arora.
  • Bench rises for the day. Hearing to continue day after tomorrow.
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