Thread by @barandbench

Supreme Court resumes hearing the cases relating to communication shutdown in Kashmir.

Senior Counsel Meenakshi Arora making her submissions for intervenors.

Arora cites precedents to submit that any order or law cannot have the force of law if it is not published or promulgated.

Arora: If orders/laws are passed on August 5 and the communication and press have all been suspended from August 4, these orders are not published in a reasonable place. This is an aspect which also needs to be considered by the Court.

Arora: On Aug 4 people of thei country are not aware that on Aug 5 there will be a move for abrogation of A.370 in the Parliament. The situation that the Court needs to see is the situation that was present on Aug 4 and there was nothing out of the ordinary on that day

Arora: The officers who passed the orders (relating to communication lockdown) on Aug 4 could not have presumed what might have happened on Aug 5.

Justice Gavai: Your argument is that the Magistrate has the power to pass S.144 orders and it appears that the Magistrates were under some dictate by the State Government?

Arora: Yes

Arora: Expediency is not a standard, necessity is the standard. In a democratic society, necessity has a very different test.

Arora cites Rangarajan case which held that A.19(1)(a) can be restricted subject to 19(2) only when there is necessity

Arora: People had the right on Aug 5 to say if they were in favour or against the orders. Peaceful protests are a known and valid form of demonstartion in a democratic society.

Arora cites precedents set in Maneka Gandhi case and Sakal Papers case to highlight the importance of upholding the freedom of expression.

Arora: On proportionality test, will rely on Om Kumar judgment

Arora: Puttaswamy judgment lays down the four step test for proportionality which could have been applied in this situation

Arora: There was high Police presence and complete restraint on their right to move freely and this creates a fear on the mind of the citizen and this fear leads to an inert citizen. And a democracy cannot afford to have an inert citizen.

Arora cites the opinion of Justice Subbarao in Kharak Singh judgment which was upheld in the privacy judgment

Arora gives the example of the protests in Hong Kong where the Courts had held that the citizens had the right to cover their faces with masks and protect their identity.

The situation there was far more adverse than anywhere else

On Arora's citing of Hong Kong judgment:

Justice Ramana: The Supreme Court of India is far more superior in upholding the fundamental rights of the citizens

Arora: Just drawing an analogy here. The protests were peaceful and test of proportionality was applied.

Justice Gavai: Is there a problem of cross border terrorism in Hong Kong?

Arora: The problem of cross border terrorism in Kashmir is present only in limited areas of the region but the entire population of the region is being put under restrictions.

Justice Ramana: It is like the entire population of Kashmir is being treated like terrorists.

Senior Counsel Meenakshi Arora concludes her arguments.

Senior Counsel Sanjay Hegde begins making his submissions for a Kashmiri citizen who had sought permission to travel to Kashmir to visit his family.

Hegde: I had filed my affidavit upon returning in a sealed cover because if I had said anything, one of the two sides would have objected to it.

Justice Gavai: So you agree there are two sides?

Hegde: Yes. But me and my family have been law abiding citizens like most of the people of the State and yet all this (the restrictions) have been imposed on people like us

Hegde cites Lord Atkin's dissent in a British judgment of Liversidge v. Anderson when there was a threat of German aggression. Lord Atkin had said that the law is not silent even at the time of war.

Solicitor General Tushar Mehta begins his submissions on behalf of Jammu and Kashmir

Mehta: First and foremost duty of a responsible government is to protect the life and security of the people

Mehta: It was in discharge of the Constitutional obligation of the government to protect the citizens. My argument is eventually going to be that the rights of the people have not been taken away but have been conferred for the first time in 70 years

Mehta: Dealing with a situation where the dissent or revolt is not from within but we are a victim of cross border terrorism where the terrorism is not only physical but also digital

Mehta: Cross border terrorism takes help from locals who have secessionist mindset

Mehta cites figures relating to violent incidents and casualties in Jammu and Kashmir since 1990 that are mentioned in the counter affidavit filed by the Centre/Jammu and Kashmir to submit that the situation suggested the need for the final decision on A.370

Mehta: Want to show what are the rights not snatched but conferred on the people for the first time since 70 years

Mehta: Minimal restrictions were imposed to protect the life and property of the people from the miniscule minority. Everything is normal except internet

Mehta lists down the effect of application of the entirety of the Constitution of India to Jammu and Kashmir.

"This will lead to grassroots democracy"

Mehta speaks about the effect of the decision to abrogate A370 on local panchayats, safai karamcharis, Scheduled Castes and Scheduled Tribes communities and reservation for them,

Mehta: Rights of women marrying outside of the State will be protected.

Mehta: 106 people friendly laws which were not applicable earlier will be applicable now

Mehta: Right to Education was not applicable earlier but not a single public spirited person came before the Court to say please make RTE applicable for the children of Kashmir.

Mehta: Public assembly was restricted, individual movement was not restricted. Sometimes the Court is misled

Justice Gavai: Mr. Sibal pointed out that there was no node of transport

Justice Ramana: Orders for prohibition were passed locally or for entire districts?

Mehta: The argument that through one mandate entire region was put under restrictions is wrong. The decisions were based on the intelligence of the local officials and police station wise

Mehta: By Sept 4 all landlines were restored.

Mehta: In areas of seven police stations (of Jammu, Kashmir, and Ladakh - erstwhile State of J&K) there were no restrictions from Day 1. This shows application of mind. Restrictions were not imposed mechanically

Mehta gives date wise lowdown of relaxations in restrictions

Mehta: Telephonic communication has started. SMS and internet have not, which I will deal with separately

Mehta: Petitioners have repeatedly said '100 days the entire region is in lockdown'. They should have pointed out situation on ground. The petition has outlived its need yet Petitioners said 'forget today, decide as on 5th August', which shows they were aware of relaxations

Mehta: This was application of mind. There was no absolute clampdown as was projected neither was their absolute relaxation

Mehta: Schools substantially opened by Aug 27 and 100% opened on October 23

Mehta: There were no restrictions in Ladakh which was part of the State. Each area was assessed based on threat perception and past history based on the information of officials who are on ground

Mehta: Majority of citizens are peace-loving and it was the duty of the government to protect this majority agaisnt the instability that the miniscule minority could cause

Mehta: In PIL, I always say, it is not adversarial litigation. We all assist the Court

Mehta: There is q misleading discourse going on that students are not going to schools. But 99.48% of the students of appeared in the examination which was held as per schedule

Mehta: Medicines, food for children is available.

Mehta lists down the figures regarding availability of essential materials

Mehta: Govt for the first time intervened in the purchase of apples through NAFED

Mehta: This (restrictions) is a temporary measure taken.

Mehta: Internet is available in tourist places in specific spots for certain number of computers. And tourists are going.

Justice Gavai: Tourists just started going there or they didn't stop

Mehta: There may have been some slump in tourism earlier on account of restrictions

Mehta: Newspapers have been publishing from Srinagar except by the petitioner (@AnuradhaBhasin_) in this case who chose to publish from Jammu.

Mehta: I'm alleging that she has chosen not to publish her newspaper from Srinagar. It is her volition to publish from Jammu perhaps to continue with her contention that everything is shut in the valley.

Bench rises for lunch.

The three-Judge Bench of Justices NV Ramana, R Subhash Reddy and, BR Gavai assembles for the post lunch session.

Hearing in the case pertaining to lockdown in Kashmir resumes.

Solicitor General Tushar Mehta resumes his arguments on behalf of Jammu and Kashmir.

Mehta (On public transport): We have mobilised public transport since a week after Aug 5. All types of public transport are on the move on all routes.

Mehta: Government has put a scheme (Ayushyaman Bharat) in place where cashless facility for availing healthcare can be taken benefit of. Total number of cases under this scheme from Aug 5 till date 11468 cases on transaction management system.

Mehta: We are alive to the problems and we have dealt with the problems. The common man is not suffering

Mehta: The allegation (of people being unable to access healthcare facilities in the valley) has been made on the basis of a report on the website IndiaSpend.

@IndiaSpend

Mehta: The website IndiaSpend was caught spreading misinformation.

Mehta places reliance on a report by OpIndia to make this submission.

@OpIndia_com
@IndiaSpend

Mehta: Your Lordships are the custodians of the rights of those citizens of Kashmir whose rights will be affected if the reliefs sought are granted.

Mehta: Steps have been taken to ensure that several newspapers are published from Kashmir.

Mehta goes on to list the number of newspapers published from the valley.

Mehta: Media centres are in place for the benefit of journalists who could access internet up till 11 in the night.

Mehta: Channels were being broadcast and regular press briefings were held for dissemination of information

Mehta: The Petitioner (@AnuradhaBhasin_ ) has deliberately chosen not to submit true facts. She has been publishing her newspaper from Jammu and has chosen not to publish from Srinagar.

Mehta quotes figures relating to minor and major surgeries and other medical procedures conducted in healthcare facilities in the valley.

Mehta: This shows that there is normalcy on the ground and not what is projected that "100 days everything is under shutdown"

Mehta cites the judgment of a five Judge Bench in Babulal Parate vs State of Bombay on the point of validity of S.144 orders

Mehta: There is a tendency to rely on foreign judgments. But the jurisprudence in countries like US is different, particularly regarding free speech which is absolute in the US but is subject to reasonable restrictions in India

Mehta (citing a judgment): We are in a completely different jurisprudence from that of the US. There is nothing in the US Constitution corresponding to reasonable restrictions

Mehta: There (in the US), burning of the national flag is considered as freedom.of expression. Journalists‌ in the US may publish the name and identity of a rape victim of they have recieved it from an official

Mehta (On argument that all of Kashmir citizenry is treated as terrorists): It is difficult to differentiate between separatists, secessionists, terrorists, and general public. Several times terrorists from across the border come wearing military uniform

Mehta seeks to continue his arguments on the next date. Attorney General begins to make arguments.

AG KK Venugopal: The past record of a person shows what action needs to be taken against him in the future. The past record of Kashmir shows there were a number of terrorist activities.

(AG cites figures of terrorist actions, fatalities et al since the year 1990)

Venugopal: In 2016, when Burhan Wani was gunned down by Security Forces, internet facilities were shut for three months

Venugopal cites the judgment of the Supreme Court in the case of NIA vs Zahoor Watali

Venugopal: It is clear from the findings of the designated Court in Watali case that Pakistan has been pushing in terrorists. Our we to ignore all this and hope everything will be peaceful?

Venugopal: It would have been irresponsible if preventive action to prevent Pakistani activities through Hurriyat was not taken

Venugopal: Cellphones were used by elements like the Hurriyat to gain gathering of thousands of people at the push of one button

Venugopal mentions the 2018 order of the Supreme Court in the case relating to Shopian firing where the Court directed for the probe against Major Aditya to be put on hold

Venugopal: GOI should be congratulated for the manner in which this (the move of and the aftermath of abrogation of Article 370) was handled without even a single bullet fired, without any life lost

Venugopal: This is why I urge for this to be viewed in a broader perspective and not the nitty-gritty of S.144 orders etc.

Venugopal concludes; Bench rises for the day. Hearing in the case to continue on Monday, November 25 at 12PM

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