Five months after the government revoked the limited autonomy granted to the state of Jammu and Kashmir by the Constitution and imposed a lockdown in Kashmir, the Supreme Court on January 10 gave its judgment on the communication blockade in the Valley. The court held that using the internet to exercise freedom of speech and to practice any profession or business is a fundamental right. It also laid down restrictions on the state’s power to issue prohibitory orders under Section 144 of the Criminal Procedure Code. The decision is being hailed by some as a victory and a judgment for the future .

However, in order to fully assess the impact of the judgement, it is imperative to read it in the larger context of Kashmir and the Supreme Court’s reactions to petitions filed about several other issues arising out of the effective revocation of Articles 370 and 35A of the Constitution which gave Jammu and Kashmir its autonomy.

These petitions were filed consequent to Parliament’s actions and in view of many mainstream politicians, lawyers and leaders of the civil society of Kashmir being detained under the Public Safety Act and held under house arrest with no record, the suspension of phone and internet services and the resulting effects on the media. These included a petition by child rights experts asking the court to intervene in the issue children being detained in Kashmir and by Kashmir Times editor Anuradha Bhasin challenging the communication blockade.

Basic freedoms still suspended

In the following months, landline telephone services, post-paid mobile services, machine-based SMSes and highly selective internet services in government facilities were restored gradually. But the Valley still remains without basic freedoms and services such as mobile internet, and in lockdown.

Meanwhile, five months on, the Supreme Court is yet to hear the challenge to the revocation of Articles 370 and 35A. During that time, the state has been split into two Union territories, various human rights institutions have been abolished, dozens of laws repealed and new laws applied. The Court specifically refused an interim stay when the matter was heard before the changes came into effect on
October 31. When the Supreme Court finally hears the petitions challenging the constitutional amendments, the exercise may be more academic than practicable, given the far reaching and irreversible nature of the changes that have been brought about on the ground, despite a pending legal challenge.

In the habeas corpus petitions, after considerable delays, the Supreme Court merely gave orders for some family members and well-wishers to meet the detainees and nothing more than that. The Supreme Court did not even ask why the leaders of political parties needed to be detained in such a manner. Thus, after more than five interminable months, political leaders and lawyers still remain under preventive detention with no date of release mentioned by the authorities.

Kashmiri journalists in Srinagar protest on November 12 against the internet blockade. Credit: Tauseef Mustafa/ AFP

The petition filed by the child rights experts regarding the illegal detention of children was disposed of with liberty to approach the appropriate legal forum if there are any individual cases of illegal detention. The order was based on two reports submitted by the High Court Juvenile Justice Committee stating that children had been released the same day that they had been detained and that “nothing adverse was noticed by the Committee to suggest commission of any excesses”.

This is in stark contrast to many credible reports from the media and other independent quarters based on interviews with families of minors and even some released minors, which reiterate that children were detained, heckled and beaten.

It is in the same vein as earlier post-revocation orders, that the Supreme Court also decided the petitions on the communication blockade on January 10. While the Supreme Court declared that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoy constitutional protection, it failed to set aside the suspension of internet services and other elements of the communication blockade. Instead, it directed the authorities to review existing orders.

On Section 144 of the Criminal Procedure Code,which empowers a magistrate to pass urgent orders including prohibiting assembly of more than four persons, the Supreme Court held that the test of proportionality would apply to such orders. But it also cautioned against “the excessive utility” of the doctrine in matters of national security, sovereignty and integrity. While it has directed the state to publish all orders under Section 144 and make them available to the public, it failed to have the orders under challenge produced before it.

Despite repeated attempts by the counsels representing the petitioners asking the court to direct the authorities to produce all the orders and despite the order of the Court, only sample orders were produced by the state. One is not even aware whether more such orders even exist or the internet and other communication were shut down in the Valley completely arbitrarily with no legal basis.

Further, while reiterating well-established principles that are already enumerated in the basic provisions of law and earlier judgments, the Supreme Court issued toothless directions to the authorities to review their own decision to suspend internet services and directed it to allow government websites, localised/limited e-­banking facilities, hospitals services and other essential services where internet services are not likely to be restored immediately. After the judgement, there appears to have been a review meeting held and the authorities restricted access to internet was restored for limited purposes from January 15, while wide mobile internet connectivity still remains suspended.

It is time that the communication blockade is lifted entirely and the people of the Valley regain their voice.

Paramilitary troopers stand guard infront of closed shops during a lockdown in Srinagar on November 22. Credit: Tauseef Mustafa/ AFP

The broader context

As Kashmir still faces the communication blockade, people remain in custody and children live in fear, the Supreme Court’s recognition of the use of internet for purposes of exercising freedom of speech, expression and profession as constitutionally protected in its loftily worded judgment free of any actual and immediate directions to cease the internet blockade is being hailed as a step forward.

The limitations laid down by the court on state powers under Section 144 that are inherent to the provision and the law at large are being welcomed as innovations and for having empowered people’s right to protest. However, one cannot read this without remembering the observation that the Chief Justice of India made when a petition was moved for intervention in the Delhi police atrocities against the students of Jamia Millia Islamia. “Just because they happen to be students, it doesn’t mean they can take law and order in their hands, this has to be decided when things cool down,” he said. “This is not the frame of mind when we can decide anything.”

If the Supreme Court sincerely wanted to stand up for fundamental rights and provide an elaborate and well-reasoned judgment, this case provided the perfect opportunity – a chance to which it turned a blind eye. In this bleak political situation, when we have very little hope to hold on to, it is a bitter reflection of our times that straw thrown by the Supreme Court seems like a lifeline.

Veena Gowda and Vijay Hiremath are practising advocates and human rights activists in Mumbai.