The Supreme Court has had harsh words to say about the Union government’s conduct in Jammu and Kashmir with respect to its continued shutdown of the internet. Let us remember it has been five months counting since the former state of Jammu and Kashmir, which had some measure of autonomy, has come to look like occupied territory.
Delivered against the background of another tawdry public-relations exercise mounted by the Union government in the shape of giving friendly envoys a guided trip to the now Union territory, the top court’s strictures assume much greater significance.
Friday’s order passed by the court was categorical in ruling that access to the Internet for communication and work was covered under fundamental-right provisions, such as Article 19. “We declare 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 enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g),” the court said, in the context of the need for internet facilities to enjoy these freedoms.
Article 19 in general protects the rights to freedom of speech, assembly, association, movement within the country and the practice of a profession, occupation and business
It also said the internet could not be shut down arbitrarily. Such shutdowns could be challenged in the courts. It stopped short of testing the legality of the shutdown in Kashmir, but directed the government to review in a week the order and provide justifications for the shutdown, stating particularly how the action was proportionate in the context of a possible threat to law and order.
The court asked authorities to immediately consider freeing government websites, e-banking facilities and other essential services in areas where internet services were not likely to be restored immediately.
The Supreme Court also questioned the validity of the indiscriminate recourse to Section 144 to abridge citizens’ rights to express dissent without resorting to violence. A complete clampdown should only be imposed when it was necessary and unavoidable, said Justice NV Ramana who headed the three-judge bench, which also ruled that magistrates should apply their mind and follow the doctrine of proportionality while passing prohibitory orders.
Unlike an earlier bench, Justices Ramana, R Subhash Reddy and BR Gavai have sub-textually questioned and impugned the Union government’s arbitrary executive actions in Kashmir ever since the abrogation of Article 370 of the Constitution on 5 August last year. It is for the government now to present justifications. Thus far, the government’s position has been continued reiteration of complete falsehoods. It has continued to say that life is normal in Kashmir, not a single life has been lost due to violence and not a single shot has been fired in the Valley. All these claims have been exposed as lies despite the clampdown and the information blackout. As ever, people have found ways of communicating the nature of the actual situation.
It is against this background that the Union government has organised a two-day guided tour for 15 envoys, including the one representing the United States, in Kashmir. On Thursday, they apparently met politicians, journalists and leading lights of civil society. The available reports are not specific about exactly who the civil society representatives or journalists were or about their provenance. We cannot, therefore, derive any conclusions. Amongst the politicians were some members or former members of the People’s Democratic Party (PDP) and two from the Congress. The PDP members were promptly expelled by their party. The point is not exactly who the 15 diplomats met, but that the government packaged all interactions. There is a larger point, of course, which we shall get to in a bit.
On Friday, it was more of the same. The envoys met representatives of civil society and were briefed by the chief secretary and director-general of police. Many representatives of civil society apparently told the envoys that they welcomed the abrogation of Article 370. The envoys obviously did not meet any of the jailed politicians, including the three former chief ministers who have been incarcerated. The government would have the public believe that this was a fact-finding trip, not a guided tour. This claim is so risible it does not deserve serious consideration. “Fact-finding” teams go into an area independently, move around independently, and talk to whoever they wish to, so as to collect data that presents a multi-faceted picture of a situation. The Ministry of External Affairs needs to buy a dictionary for its spokesperson.
In the end, however, the minutiae of who met whom under what circumstance is not the point. The question is about what the government thinks it is doing taking envoys around Kashmir when this country’s citizens are not being allowed to go there and see what is happening. This is an abrogation of Indian citizens’ rights to move about freely in their own country, vide Article 19(1)(d) in the chapter on fundamental rights. The government’s restrictions could imply several things: Kashmir is not a part of India, therefore Article 19(1)(d) does not apply; Kashmir is under a formal Emergency regime, which allows the government to make executive decisions in the realm of exception; or, the law-and-order situation in Kashmir is so alarming that it is almost like a war zone, so movement into or within it must be restricted. Let the government make its position clear.
Let us remember that the Narendra Modi/Amit Shah-led regime’s jackboots have been trampling all over the Valley not for five days, not for five weeks, but for five months counting. Many are in jail; many, including children, have been brutalised; civil liberties remain suspended; and normal life is still a speck on a distant horizon. Someone suggested that life was normal, because violence had stopped. Aha. So, the Valley’s new normal is the peace of the grave, enforced by the terrifying violence of the jackboots.
If the government thinks giving 15 friendly envoys a junket around “peaceful” Kashmir will convince the world that all is normal in the Valley under the benevolent, indeed beneficent, watch of Prime Minister Narendra Modi and Home Minister Amit Shah, it is probably suffering from hallucinatory delusions. The international community does not consist solely of credulous Hindutva junkies with a taste for jingoism. While the envoys were touring, the world was taking in the Supreme Court’s admonition of a criminally culpable regime.
Suhit K Sen is an independent researcher and journalist. The views are personal.