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'Kashmir Lockdown Fails Test Of Proportionality; State's Case Has Internal Contradictions' [Read Petitioners' Written Submissions]

5 Dec 2019 3:01 PM GMT
Kashmir Lockdown Fails Test Of Proportionality; States Case Has Internal Contradictions [Read Petitioners Written Submissions]
The State's case fails upon the constitutional standard of proportionality, even on its own terms, the petitioners submit.
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The petitioners in the cases challenging the constitutionality and legality of Kashmir lockdown have jointly filed written submissions in the Supreme Court.

A three judge bench comprising Justices N V Ramana, R Subhash Reddy and B R Gavai had reserved judgment on November 27 on the petitions filed by Anuradha Bhasin (Executive Editor, Kashmir Times) and Congress Rajya Sabha MP Ghulam Nabi Azad. The Court also heard few intervenors such as Indian Journalists' Union, Internet Freedom Foundation etc, in the case.

The petitioners challenge the restrictions prevalent in Kashmir region since August 5 in the form of internet shutdown, communication blockade, curbs on media, restrictions on travel ,etc.

It is stated that the restrictions amount to effective suspension of the fundamental rights of seven million people. This can be done only by declaring emergency under the Constitution and not through executive orders passed by District Magistrates.

"In the history of independent India, restrictions at such scale have never been imposed in absence of a formal declaration of an emergency under the Constitution. It is therefore  submitted, that this case for the first time raises the issues of imposition of emergency like restrictions in the absence of declaration of an emergency", urge the petitioners. 

The main points raised in the written submissions - which are drawn by Advocates Vrinda Grover, Shadan Farasat, Prasanna S., Gautam Bhatia, Vrinda Bhandari, Jahnavi Sindhu, Soutik Banerjee, Shruti Narayan, Devdutta Mukhopadhaya,Deepali Dwivedi,- are :

  1. The communication shut down orders are illegal as they are against Temporary Telecom Suspension Rules.
  2. The communication shut down violates Article 19(1)(a) and fails the test of proportionality under Article 19(2) of the Constitution.
  3. The restrictions also fail the test of over breadth under Article 19(2).
  4. The restrictions have caused a chilling effect on the exercise of fundamental rights and freedoms.
  5. The suspension of rights of an entire territory for a long span can be done only by declaring emergency under Article 352 of the Constitution.
  6. The various orders passed under Section 144 of Code of Criminal Procedure violate the Constitution.
  7. The State has failed to discharge its positive obligations to protect the rights of the citizens.
  8. The restrictions violate India's international obligations under ICCPR.
  9. The State has failed to place complete information before the Supreme Court.
  10. The State has made mala fide and incorrect pleadings attacking one of the petitioners - Anuradha Bhasin.

The petitioners make a reference to the recent Kerala HC judgment in Faheema Shirin v State of Kerala which declared access to internet a fundamental right.

Referring to precedents, the petitioners submitted that once it is established, prima facie, that fundamental rights have been restricted or infringed, the burden is on the State to justify their reasonableness under Articles 19 and 21. In this case, the State has "miserably failed" to discharge such burden, stated the petitioners.

The written submissions filed through Advocate Sumita Hazarika said :

"the State has case has rested on a set of astonishing premises:

first, that it is exempted even from showing the law and orders on the basis of which it has restricted rights and freedoms to such a degree;

secondly, that this Hon'ble Court ought to adopt a highly deferential approach upon the invocation of "national security" as a justification for restrictions upon rights; and

thirdly, that because the State – by its own admission – has proven incapable of distinguishing between a "minuscule minority" of people who may be under suspicion and the vast majority of innocent people, it is entitled to impose blanket and indiscriminate restrictions on millions of individuals.

It is respectfully submitted that each of these three propositions are utterly foreign to Indian jurisprudence, productive of great public mischief, and being constitutionally untenable do not deserve any consideration by this Hon'ble Court"

The petitioners further argue that the State's argument suffer from "internal contradictions", as follows :

"On the one hand, it justifies its blanket and indiscriminate restrictions by pointing to the "unprecedented" and "one of a kind" situation existing in the state of Jammu and Kashmir; but on the other, it refuses to invoke the very Constitutional framework that was designed to deal with "unprecedented" situations where normal constitutional standards do not apply – that of Article 352. In other words, the State advances a series of arguments based upon the "exceptional" character of the present situation, but while wishing to stay within the legal framework meant for situations of "normalcy."

On the one hand, the State argues that only a "miniscule" number of people are causing problems; but on other hand, it states that it has no effective way of identifying these "miniscule" individuals, and is driven to restrict everyone's rights.

On the one hand, the State argues that there are no "judicially discoverable and manageable standards" to "segregate" individuals who use the communications network and the internet for legitimate purposes, and those who use it for illegal purposes; however, on the other hand, the State's own past actions indicate that it is fully capable of – and indeed, has, in the past as well as in the present – engaged in selective and targeted action against miscreants, based on credible intelligence inputs, etc"

The State's case fails upon the constitutional standard of proportionality, even on its own terms, they submit. 

Kashmir [Article 370] Hearing In SC [Petitions, Pleadings, Arguments, Orders And More]

The petitioners contend that the State has placed incorrect facts before Court. Although 100% mobile phone connections were claimed to have been restored, nearly 40 lakh pre-paid connections remain blocked. The materials submitted by the petitioners showing lump in tourism, agriculture production, business, industries etc following the shutdown have not been controverted effectively.  The State claimed nearly 100% school attendance on examination dates. But, the data on school attendance on non-examination days has been concealed by the State. The state has said there are no restrictions on movement but has also admitted that there are night time restrictions. The State has not controverted the specific submissions of the petitioners that even in places where there are no prohibitory orders, the movement of people is being restricted arbitrarily on the ground.

The petitioners also dispute the State's claim that new rights have been "conferred" on people on J&K after August 5. They point out that Jammu and Kashmir had already in place progressive enactments such as laws for protection of women from domestic violence, juvenile justice, right to education etc., even when it enjoyed the special status.

To read the complete reports of daily hearings in the Kashmir cases so far, click here.

Click here to download written submissions

Read Written Submission

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