Congress leader Ghulam Nabi Azad's petition, also challenging various restrictions imposed in #JammuAndKashmir , is scheduled to come up next, though not sure if it will be heard.
You can follow all updates from inside and outside the courtroom @TheQuint
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You can follow all updates from inside and outside the courtroom @TheQuint
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Advocate @vrindagrover resumes arguments for Anuradha Bhasin.
She had raised arguments yesterday on how the orders issued by govt for suspension of telecom services were not adequate as per law, and contained discrepancies @TheQuint
She had raised arguments yesterday on how the orders issued by govt for suspension of telecom services were not adequate as per law, and contained discrepancies @TheQuint
Grover has been using discrepancies in the orders to show that the orders were passed without application of mind. She refers to one of the orders shed pointed out yesterday as well, where only internet shutdown was directed, but landlines were also cut. @TheQuint
Grover also points out how in several cases, the orders only specified limited restrictions like 'snapdown' of internet - lowering speeds from 3G/4G to 2G.
But the authorities shut down net + other telecom services in the areas these orders applied to.
@TheQuint
But the authorities shut down net + other telecom services in the areas these orders applied to.
@TheQuint
Grover now goes back to the Telecom Temporary Suspension Rules 2017, which the govt claims as basis for their orders on the communications blackout.
"These Rules must be strictly applied when used to restrict fundamental rights" @TheQuint
"These Rules must be strictly applied when used to restrict fundamental rights" @TheQuint
Grover points out that the govt has stated in its affidavit that the orders under the Rules were issued by the Inspector General (IG) of Police.
However, under Rule 2(1), these orders are to be passed by someone of the rank of Home Secretary in central or State govt. @TheQuint
However, under Rule 2(1), these orders are to be passed by someone of the rank of Home Secretary in central or State govt. @TheQuint
In "unavoidable circumstances", instead of the Secretary, an officer not below rank of Joint Secretary can be authorised to pass the orders, which have to then be confirmed by the Secretary within 24 hours.
@TheQuint
@TheQuint
(3) Even if there were 'unavoidable circumstances' contemplated under Rules, a police officer could not be the person authorised to pass the orders here.
Cites other Telegraph Act Rules which also use similar language, and under which police aren't given such powers.
@TheQuint
Cites other Telegraph Act Rules which also use similar language, and under which police aren't given such powers.
@TheQuint
Grover now reads out para of Govt's additional affidavit dt 23 Oct, which says they aren't required to give reasons for their orders, not subject to review in court.
She points out that Rule 2(2) of the 2017 Rules clearly says orders must contain reasons in writing. @TheQuint
She points out that Rule 2(2) of the 2017 Rules clearly says orders must contain reasons in writing. @TheQuint
She also argues that these reasons cannot be an afterthought, and that court can review them.
She also says none of the govt affidavits include any mention of the review committee required to be set up to assess the telecom suspension orders.
See relevant Rules below @TheQuint
She also says none of the govt affidavits include any mention of the review committee required to be set up to assess the telecom suspension orders.
See relevant Rules below @TheQuint
To sum up, Grover says these orders whic were supposed to be temporary, were issued:
- without application ofmind,
- without valid reasons,
- by the wrong authority,
- were not temporary,
- and were not reviewed.
@TheQuint
- without application ofmind,
- without valid reasons,
- by the wrong authority,
- were not temporary,
- and were not reviewed.
@TheQuint
Grover now returns to the Telegraph Act, Section 5(2) of which gives power to restrict or intercept transmissions.
She says if this meant to restrict transmissions by the press, there needs to be a separate order specifically asking for this
@TheQuint
She says if this meant to restrict transmissions by the press, there needs to be a separate order specifically asking for this
@TheQuint
Judges question whether a separate order is needed. Justices Reddy and Gavai question why the general order under Section 5(2) isn't enough to restrict transmissions of journalists also.
@TheQuint
@TheQuint
Grover points out that even if a separate order weren't needed, the main order would need to have specific reasons and clauses dealing with press restrictions.
"The proviso to Section 5(2) would have no meaning otherwise," she argues. Judges indicate agreement.
@TheQuint
"The proviso to Section 5(2) would have no meaning otherwise," she argues. Judges indicate agreement.
@TheQuint
Next, Vrinda Grover argues that the govt ordera and affidavit justify the restrictions as necessary to deal with 'law and order' situation.
However, law and order is not grounds to restrict fundamental right to freedom of speech under Article 19(2).
@TheQuint
However, law and order is not grounds to restrict fundamental right to freedom of speech under Article 19(2).
@TheQuint
Justice Reddy asks why security of the state, which is a ground under Article 19(2), doesn't cover law and order problems.
Grover refers to previous Supreme Court judgment on the Ram Manohar Lohia case and other precedents to say law and order is a lower threshold. @TheQuint
Grover refers to previous Supreme Court judgment on the Ram Manohar Lohia case and other precedents to say law and order is a lower threshold. @TheQuint
Grover then signposts an argument to be explained in more detail by Kapil Sibal in Ghulam Nabi Azad's case, that the the telecom shutdowns in #JammuAndKashmir are excessive and disproportionate as per doctrine of proportionality in Puttaswamy judgment (rt to privacy)
@TheQuint
@TheQuint
She then moves on to the importance of the press in a democracy, noted by Supreme Court in Indian Express and Sakal Papers cases.
Judges joke that media is now the most powerful pillar of democracy.
"I don't think that appears to be the case in J&K", Grover replies.
@TheQuint
Judges joke that media is now the most powerful pillar of democracy.
"I don't think that appears to be the case in J&K", Grover replies.
@TheQuint
Significant argument by Grover now on importance of internet today:
"Internet is an essential and basic attribute for the press to function and perform its role in a democracy. Any interference is a destruction of the right of the free press to operate."
@TheQuint
"Internet is an essential and basic attribute for the press to function and perform its role in a democracy. Any interference is a destruction of the right of the free press to operate."
@TheQuint
She also points out that in addition to violating journalists' rights, the internet shutdown in #JammuAndKashmir also violated the 'right to know' - held by the Supreme Court to be part of the fundamental right to freedom of expression - for regular citizens as well.
@TheQuint
@TheQuint
Grover also points to India's obligations under the International Covenant on Civil & Political Rights - she argues that the blanket restrictions on #JammuAndKashmir violate rights to freedom of speech and press freedom under this binding treaty. @TheQuint
She refers to some international jurisprudence on the issue, including a couple of judgments of the European Court of Human Rights. @TheQuint
Anuradha Bhasin case on media restrictions in #JammuAndKashmir:
Grover now takes exception to the "insinuations and aspersions" cast by the govt in its affidavits.
@TheQuint
Grover now takes exception to the "insinuations and aspersions" cast by the govt in its affidavits.
@TheQuint
She refers to govt affidavits which question motives for filing the petition, say she (Bhasin) has no intent to publish her newspaper.
Grover gives details of editions of the newspaper printed, shows this was provided to govt, but govt repeated them in 23/10 affidavit @TheQuint
Grover gives details of editions of the newspaper printed, shows this was provided to govt, but govt repeated them in 23/10 affidavit @TheQuint
"These kind of attacks - and they are attacks - on regular citizens and the press by the state have a chilling effect on free speech", says @vrindagrover. Asks judges to take note of this.
@TheQuint
@TheQuint
Finally, Grover refers to the language used to justify the restrictions in the govt orders, which includes repeated references to combat 'anti-national elements'.
She asks where the police have specified a particular group which this refers to, how it is defined.
@TheQuint
She asks where the police have specified a particular group which this refers to, how it is defined.
@TheQuint
"They have classified the entire population of J&K as anti-national elements. Isn't that a form of collective punishment?", Grover asks and concludes.
@KapilSibal to now argue on whether the govt had the power to impose the restrictions it has in #JammuAndKashmir . @TheQuint
@KapilSibal to now argue on whether the govt had the power to impose the restrictions it has in #JammuAndKashmir . @TheQuint
Sibal, representing @ghulamnazad , begins by applauding Vrinda Grover's arguments.
He then begins his arguments on legality of the #JammuAndKashmir restrictions including "stopping people from leaving their homes", says no such thing has been done in India before.
@TheQuint
He then begins his arguments on legality of the #JammuAndKashmir restrictions including "stopping people from leaving their homes", says no such thing has been done in India before.
@TheQuint
Sibal has tried to draw a distinction b/w restrictions on fundamental rights and prohibition of abrogation of these rights.
He says what govt has done in #JammuAndKashmir amounts to abrogation of fundamental rights, which is not permitted even in a state of Emergency.
@TheQuint
He says what govt has done in #JammuAndKashmir amounts to abrogation of fundamental rights, which is not permitted even in a state of Emergency.
@TheQuint
[My apologies, been trying to understand and frame the arguments raised by Sibal, so haven't been able to update in real time. Will add more to the thread later today]
UPDATE: Matter adjourned for today, to resume tomorrow, Thursday, 7 November.
@TheQuint
@TheQuint
