Fifty-six days into a lockdown that began on August 5 in Jammu and Kashmir, Solicitor General Tushar Mehta claimed in the Supreme Court on Tuesday that “no restrictions” have been thrust on Kashmiri people and “100% landlines are working”.
At one point when one of the judges on the Bench, Justice B.R. Gavai, ventured to ask Mr. Mehta about the state of mobile phone connectivity in the State, the top law officer indicated that mobile phones were a relatively recent phenomenon in Jammu and Kashmir.
“Are there mobile lines working in J&K?” Justice Gavai asked.
“Mobile lines were there in rest of the country from 1995, but it started in J&K only in 2005... If mobiles start, WhatsApp messages will come from across the border,” Mr. Mehta replied.
Senior advocate Sanjay Hegde pointed out that the Supreme Court itself had in a previous order urged the government to restore “all forms of communication”. “All forms of communication does not mean just landlines alone, but Internet too,” Mr. Hegde submitted.
But Justice Gavai preferred then to strike a balance and pointed out to the lawyer that the very same order had also urged the government to keep national security in mind before restoring full-fledged connectivity to J&K.
“We need to balance liberty and national security,” Justice Gavai reminded Mr. Hegde.
Senior lawyer Vrinda Grover, for journalist Anuradha Bhasin, pressed the Bench, led by Justice N.V. Ramana, to focus on the question of why the lockdown is continuing, now for the 56th day.
Senior advocate Dushyant Dave reminded the Bench that “larger human rights issues” deserved immediate attention and mere technicalities of procedure like who was intervening in the case and why a reply had not been filed should be pushed to the background. “This is not a matter in which technicality should prevail,” hesubmitted.
Health care issue
Senior advocate Meenakshi Arora submitted that “people who come from far-flung districts of Jammu and Kashmir are not able to access medical care in Srinagar... Health schemes, including the Pradhan Mantri Jan Arogya Yojana, is linked to the Internet”.
But Mr. Mehta said all these claims about the inability to access health care is “absolutely wrong”. He submitted, “They are being said for something else, which I don't want to say now.”
The Solicitor General, who has filed an affidavit in Ms. Bhasin's petition, said over 16 lakh people have had access to outpatient services in government hospitals in J&K since August 5. There have been over 15000 major surgeries and 65000 minor surgeries. The government even had the statistics on the number of dental visits, which was over 95000 after August 5.
But Ms. Arora was not convinced by the figures. For one, she reasoned, the figures were not shared with the petitioner for independent verification. Secondly, there was nothing to compare these statistics of the government with. “What were the numbers before August 5? We don't know,” she said.
This was the first hearing held by the Justice Ramana Bench, which also comprises Justice R. Subhash Reddy, on the several petitions filed from across the spectrum against the lockdown and lack of access to basic facilities.
The J&K government affidavit filed in the apex court said: “...Temporary restrictions on various communication channels like Internet and mobile services have been resorted to in order to prevent the law and order violations as it is the experience since many years that Internet and mobile services are misused by anti-India elements, across the border and within the region of Jammu and Kashmir to spread false provocative content to instigate violence and also to smoothly carry out terrorist operations... It is to the credit of the Government that these measures have succeeded in full, and not a single bullet has been fired till date and there has not been any loss of life on account of any police firing.”
In a separate affidavit to the court, the Union Ministry of Home Affairs fully endorsed the J&K govt affidavit: “Government of India is committed to making every endeavour to ensure that the region returns to a state of normalcy as expeditiously as possible, consistent with the requirements of national security and maintenance of peace and order.”
On September 30, another Bench of three judges led by Chief Justice of India (CJI) Ranjan Gogoi suddenly decided to shift the petitions to this “Kashmir Bench”. The CJI cited paucity of time to hear the Kashmir petitions due to the marathon Ayodhya appeals hearings.
However, the Justice Ramana Bench refused to intervene in a petition filed by Dr. Sumer Kaul about the lack of access to hospitals in J&K. The Bench said it would be better for the High Court to entertain his plea as instructions to the government could be relayed easily from the High Court, which is more proximate.
Advice to Yechury
Justice Ramana initially advised Communist Party of India (Marxist) general secretary Sitaram Yechury to move the High Court to question the detention of his party colleague M.Y. Tarigami. But senior advocate Raju Ramachandran objected.
“So, assuming that the detention was illegal, what do you want?” Justice Ramana tested Mr. Ramachandran's position.
“I want a declaration that he was detained illegally. That is enough. I don't want compensation,” Mr. Ramachandran responded.
The Bench asked the Centre to file a response even though Mr. Ramachandran pointed out that the government has not filed a reply despite the court order to do so in the past. The court then said the case would come up in due course of time.
The court found that the J&K government has not filed a reply to the petition of Asifa Mubeen, who believes her husband is lodged in a jail in Agra. Mr. Mehta countered that a similar petition is pending in the J&K High Court.
“Why should we accept your petition? Let the high court handle,” Justice Ramana. But the lawyer persisted and finally the court asked the State to file a response in two weeks.
In the petition filed by senior Congress leader and former J&K Chief Minister Ghulam Nabi Azad, who has questioned the restrictions, Mr. Mehta said there were no restrictions and things had got better in the past weeks.
Justice Gavai reiterated that these were matters of national security.
Finally, the court asked the J&K government to file a response in a fortnight. It has listed the cases of Mubeen, Azad and Bhasin for hearing on October 16.
In another petition filed by child rights activists Shanta Sinha and Enakshi Ganguli, the court allowed their lawyer some time to study a report filed by a High Court Committee on the allegation that children below 18 years have been detained by authorities.
