SC bench headed by Justice Ramana starts hearing the petition against Kashmir shutdown
Sr Adv Huzefa Ahmadi appearing for Journalists Union, which has intervened in the matter.
Huzefa Ahmadi refering to ADM Jabalpur case.
J Ramana- Don't expand the issue. We are aware of the issue. Won't be able to conclude hearing before vacation like this
Bench inclined to hear the case all day today. Asks who will be arguing. Informed that Dushyant Dave and Meenakshi Arora will argue for Petitioners too. Bench inclined to conclude arguments on behalf of Petitioners today
Sr Adv Ahmadi argues about political prisoners during emergency and refers to SC observations in ADM Jabalpur. Cites dissenting judgement as "it is the law today, since the majority judgment was overruled"
Sr Adv Ahmadi : There was an emergency then, not in the present case. No need to give reasons then, they said. Saying the same in this case. No one can be deprived of right to life and liberty without authority of law. Even in the absence of Art21.
Ahmadi : During emergency the govt used the ground of emergency to not allow the detained to move court. Here they cite national security to not produce orders or reasons.
Ahmadi : Orders under 144 must be based on material facts which led to an informed opinion. Not on mere apprehension
J Reddy- according to you, what should be material facts?
HA- there are intelligence agencies. Specific inputs from govt intelligence.
J Reddy- Should govt wait a day or two before ordering?
HA- Not necessarily. But material facts are required. It'll become a norm if no reasons are given. Then any govt can impose 144 whenever they want, based on apprehension
Sr Adv Ahmadi refers to 5(2) of Telegraph Act. "Our jurisprudence does not allow for a presumption of criminality based on suspicion", he submits.
Refering to precedents to buttress the point
Ahmadi : Restrictions under Art 19 must pass test of proportionality. The test is that measures taken have to be in order to meet a legitimate goal or suitable cause. The same must not have disproportionate impact.
Ahmadi cites Privacy judgment. SC had held that in matters concerning restrictions on liberty and privacy, even to achieve a legitimate end, the route must be least intrusive. Restrictions must be tailored narrowly.
"Petitioners should not be looked at as being against the integrity of the nation. I urge your lordships not to be sensitive. We are asking the govt why restrictions have not been lifted"