August 13, 2020 8:12 pm

In The Name Of Security And Public Order

  Illustration credits: Livelaw/the maps used are for representational purposes only

The lockdown imposed on August 5 last year on communication and internet has denied the basic essential rights to people in Jammu and Kashmir

Soayib Qureshi

ON August 5, at the stroke of midnight, State of Jammu and Kashmir was placed under a complete lockdown. All voices of dissent neutralized. You ask why? The answer smoothly given with a smile is, “In the name of National Security and Public Order”.

Way back on  August 5, 1914, Great Britain had declared war on Germany. This was due to Germany’s invasion of Belgium and its refusal to leave Belgium neutral. At that time, telegraph was the mode of communication and Great Britain had the most advanced undersea telegraph cable system. Great Britain, being in a dominant position, thus wanted to make full use of its advanced infrastructure, the only impediment being cables of Germany.

As a military strategy, on  August 5, 1914, a British Cable Ship severed five German overseas underwater cables, which passed from Emden through the English Channel to Vigo, Tenerife, the Azores and the United States. German Communications were completely cut, forcing them to communicate on British Lines and providing Great Britain an intelligence windfall. The messages sent on British Lines were Intercepted and decoded. This strategy resulted in Great Britain intercepting the “Zimmermann Telegram” which was used to help draw the United States as an ally. Great Britain thus created the first global communications surveillance system.

While, Great Britain used “interdiction”, as a military strategy in war, the same is clearly being used in Jammu and Kashmir, by the Central Government to either gain intelligence inputs or maybe to completely curb dissent. Although, events which have transpired since August 5, 2019 tilt the balance in favor of curbing dissent.

The lockdown imposed on August 5, 2019, on communication and internet, has denied the basic essential rights to people in Jammu and Kashmir: education, healthcare, trade communication, most of all, right to choose their own leaders. Surprisingly, these very rights were guaranteed by the Constitution of India, but put in abeyance, for no good reason, all in the name of National Security and Public Order.

It need not be explained how lack of communication and impositions of restrictions on movement can paralyze an entire eco system. Restrictions imposed on  August  5 and continued since, impacted not only trade and commerce, but also took a heavy toll on education, justice delivery system and tourism sector. If figures are to be believed, revenue loss has been stated to be more than 20,000 Crores. Who will compensate people for this loss?

Considering the impact, the restrictions imposed had on the people of Jammu and Kashmir, the issue was taken up to the Hon’ble Supreme Court of India, in the case of Anuradha Bhasin v. Union of India. It was expected from the Hon’ble Supreme Court to step in, protect, preserve, and nourish the rights of people of Jammu and Kashmir. But just like, Cancer, National Security and Public Order, slowly and steadily took over the freedoms guaranteed to the people in Jammu and Kashmir, where even Court-therapy (Chemotherapy) did not help. During arguments, before the Hon’ble Supreme Court, Government was unable to justify the basis for its actions and denial of basic rights of communication, trade, and a dignified life. Making it clear that the denial was merely on the whims and fancies of the Executive/Central Government.

While few politicians and individuals challenged the action of the Central Government in abrogating article 370 of the Constitution of India, there was a complete lack of interest by the Civil Society Members, intellectuals and even political parties from Jammu and Kashmir (barring one Politician who filed a case) to take actions for protection of these rights.

On  January 10, 2020, the Hon’ble Supreme Court of India, passed a detailed judgment declaring 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 enjoyed constitutional protection and the restriction upon such fundamental rights was required be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.

While doing so, Hon’ble Supreme Court, cautiously, stayed away from declaring actions of Government illegal, perhaps in the name of “National Security”. This Judgment, in all vehemence asserted that the action of complete blocking/prohibition could not be accepted by the Court and observed that the Government should have attempted to determine the feasibility of putting restrictions on social media. The Government was thereafter directed to revisit its orders, pass fresh orders and place the same in public domain.

Consequently, certain relaxations were given, and internet came back to Jammu and Kashmir, albeit at the restricted speed of 2G. As such, it appeared that the Government would in the coming months remove the restrictions. However, that was not the case to be. The Government continued to restrict the Internet Connectivity to 2G on mobiles, despite knowing that majority of population of Jammu and Kashmir was not accessing Internet through board-band. Internet, through mobile communication, remained an effective and cheap mode of accessing internet. Any reasonable Government, having a mandate to help people, would find a way, to make life of people less miserable, or at-least provide a way out. But with the “string led administration”, dealing with misery of people clearly was not on menu.

In the interregnum, the entire world was hit by the Covid-19 pandemic. This forced entire nation into a lockdown and at the same time gave a glimpse of what a common person from Jammu and Kashmir was suffering. The loss on account of employment, trade, and the effect it had on the economic situation of the country was clearly visible.

It was presumed that the Government would relax the restrictions and allow use of 4G through mobiles as it would not only help children in accessing their online classes, but also allow students/professionals and even the Judicial system to function through this pandemic on the virtual mode.

Who would have thought that more misery would be inflicted by the Government? The orders based on which restrictions were imposed, went on to state that the restriction on Internet speed has no effect on education of children through video conferencing.  Additionally, these orders, which as per the Judgment of the Supreme Court were required to be passed based on certain judicial principals, were nothing but “Parrot” orders. Nothing in the orders would show any application of mind or a justifiable reason.

While the entire nation, through virtual mode was progressing, people in Jammu and Kashmir were made to struggle even for essentials. Imagine the extent of damage to the economy of Jammu and Kashmir, in absence of Internet. The only tool, snatched away, which allowed people, to remain sane, to enforce their rights, of trade, education and most importantly, right of communicating with each other and without which right to live in this chaos was difficult.

The impact of Covid-19 pandemic, forced the Foundation of Media Professionals and Private Schools Association of Jammu and Kashmir to knock the doors of Supreme Court, with a basic plea to increase the Internet Speed so that the students, professionals and even traders can go on with their lives, live with dignity.

However, yet again, the Central Government came up with the old excuse of “National Security” and the Hon’ble Supreme Court declined to pass any directions and surprisingly formed a Committee, consisting of Senior officers of the Government to look into the issue  and consider the representations of the Petitioners before the Court.

No none can be the Judge in their own cause, this is the fundamental principle of law. However, rights of people, were placed by the Hon’ble Supreme Court at the mercy of the Government, which in the first place had taken the rights away. It was expected of the Hon’ble Supreme Court to take-action, as the orders passed by the Government were not in accordance with law.

The Government, yet again, flouted the law and did not take any action. A contempt petition was thus filed, which is as on date pending. The Hon’ble Supreme Court, yet again, in the contempt petition, filed by Foundation of Media Professionals, did not pass any directions, but requested the Government to see and analyze whether 4G services can be provided on experimental basis. The Apex court has the duty to protect and preserve the rights of the people and such a duty cannot be blinded by the argument of national security. In the said Contempt Petition, Central Government has now given a statement that it would be allowing 4G services on experimental basis in two districts of Jammu and Kashmir Division.

Should we be happy? The answer is in negative. There is no cogent reason for Government to continue with the restrictions. This is especially when the Lieutenant Governor, as available in media, himself made a statement that 4G services can be resumed and they had no impact on the security scenario.

Till date 88 orders have been passed by the Government in respect of Telecom Restrictions. It will take average intelligence to understand that the real issue of the Government is use of Social Media in instigating people against the Country and use of Voice Over Internet Protocol (VoIP) services by people across the border to destabilize the state.

These assertions clearly appear to be a smoke screen. In case, the Government had any issue with the use of Social Media, the same could have been curtailed by banning or withholding such Social Media Applications, however, that step has not been taken. This is even though an observation was made in this regard by the Hon’ble Supreme Court. In so far as the VoIP is concerned, the same can even as on date be accessed through 2G. Thus, there is no rationale in even giving such a justification. It is in common knowledge that mostly satellite telephones are used for infiltration.

It is also surprising that there is already a system in place to check misuse of Social Media (Inter-mediatory Guidelines framed by the Government), further, Social Media continues to be used on 2G Network, why is it then necessary to put an embargo on the Internet Speed? Why so many restrictions, when the same are not in public interest? I presume it is to force the people to look towards Center for any relief/change.

Most of the population is dependent on 4G services for their basic essential requirements. When the remaining country has access to such services, denying the same to inhabitant of Jammu and Kashmir is anathema to the rule of law.

Clearly, people at the helm of affairs are acting without taking the interests of public into consideration. The actions of the Government are clearly robotic and, on the ipse, dixie of the officials at the Centre. The rights of people of Jammu and Kashmir will continue to be trampled till the time there is a puppet at the helm of affairs. It is the need of the hour for an elected representative to take control of the situation and relay the concerns of the people of Jammu and Kashmir.

Once the government in Jammu and Kashmir is controlled by the Centre, the interests of People of Jammu and Kashmir will always be secondary. The administrators controlling Jammu and Kashmir neither have the mandate of people nor have any affinity towards them, clearly reflective from their approach to the grievances of people. Political activity therefore is a must.

It is therefore essential for the Civil society members, intellectuals and Political Parties to amplify the grievances of people, through a political process and if possible, approach the Hon’ble Supreme Court and fight for the resumption of 4G services to the entire region of Jammu and Kashmir.

  • Soayib Qureshi is an Advocate on Record, Supreme Court of India. Views of the author are personal and not intended to cast aspersions on any person or institution

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