The Supreme Court on Wednesday questioned an argument made by senior advocate Kapil Sibal that never before in the country, except in Jammu and Kashmir on August 5 , had the fundamental rights of seven million people been paralysed in one stroke by State action.
The court asked Mr. Sibal whether something similar happened in the 1970s during the Emergency under the Indira Gandhi government.
A Bench court was hearing Mr. Sibal addressing them on the legality of the restrictions on movement of and free speech imposed on the people of Jammu and Kashmir following the abrogation of their special rights and privileges under Article 370 .
“Seven million people have never been paralysed like this ever before in this country,” Mr. Sibal, representing Congress leader Ghulam Nabi Azad, submitted.
“What happened in the 1970s? The Emergency?” Justice Ramana asked with a smile.
To this, Mr. Sibal replied that even a state of Emergency proclaimed under Article 352 did not envisage the abrogation of fundamental rights. How then, he asked, were fundamental rights were allowed to be “destroyed” in J&K for the past three months by imposing restrictive orders under Section 144 of the Code of Criminal Procedure (CrPC) — a provision allowing the magistrate to impose curfew.
“What is not allowed in Article 352 cannot be allowed under Section 144 CrPC. State cannot abrogate fundamental rights. State can take over business but not destroy business. Can you tell the J&K people not to move out of the house?” Mr. Sibal asked.
“Somebody has to go for chemotherapy. But he cannot, because of Section 144 order. State has to protect me. How can they tell me not to move out of the house. Hospital may be open, but how do I reach there? You can restrict my right, but you have to protect my right within the contours of the restrictions... Ultimately, the State is a benefactor and protector. It cannot act to destroy my rights which it is supposed to protect,” he contended.
Senior lawyer Vrinda Grover, for Kashmir Times editor Anuradha Bhasin, dealt with the legality of the information blockade or communication blackout ordered by the J&K police authorities on August 4. The police orders were confirmed by the State Home Department then.
Ms. Grover said the blackout was supposedly ordered to prevent the misuse of communication services, including the Internet, by “anti-national elements”. She said the term “anti-national element” defied legal definition. The restrictive order did not identify any particular class or group or region as “anti-national”. “So are they classifying the entire population of J&K as anti-national elements — a term which defies legal definition?” she asked.
Mr. Sibal said, “Cross-border terrorism did not start today. Anyone can cross the border. It cannot be reason for shutting down everything... My own interpretation — I may be wrong — is they [government] felt if they changed the character of Article 370, it would create trouble... But why not allow demonstrations to be carried peaceably?
Ms. Grover said the stated reason for imposing the restrictions was law and order disturbance. She argued that a law and order situation did not call for information blackout. And in J&K, it was only an “apprehension” of law and order problem. “Every breach of peace is not a disturbance of public order,” she contended.
But Justice R. Subhash Reddy asked Ms. Grover whether the issue of sovereignty of the nation was not reason enough for a communication blackout.
Justice B.R. Gavai observed that whether a situation was a law and order issue or involved a breach of larger public order depended on each individual case.
Ms. Grover said the blackout was complete. Internet was disabled. “Internet is the basic tool of media freedom.”
The Bench ordered the J&K government to provide, on November 7, a complete report on whether there is an existing ban on public transportation there.
“Tomorrow morning, the first thing you have to tell us is how many buses, public transport, trucks have plied in the past days [of restrictions],” Justice Ramana addressed the government.
