SRINAGAR: With private mobile phone and internet services down for 17th consecutive day the J&K High Court Bar Association has decided to move court to challenge the ban which legal experts term illegal and unconstitutional.
The ban imposed following death of militant commander Burhan Wani on July 9 has left millions of Kashmiris. living under a severe curfew, without any means of communication.
According to the noted Supreme Court lawyer Prashant Bhushan the ban is absolutely illegal and challengeable before the court of law. At its face value, the ban looks completely illegal and it should duly be challenged in the State High Court, he told Kashmir Observer.
When KO approached High Court Bar Association to seek their opinion, Bar president Mian Abdul Qayoom informed that Bar executive committee was taking up internet and mobile ban in its meeting in a day or two.
Its not only in contravention to the provisions of the Indian Constitution that such a ban prolonged over a period of 17 days has been put in place but also against the provision of the International law.
Qayoom said that Amnesty International, Human Rights Watch and International Covenant on Civil and Political Rights unambiguously state that no one shall be arbitrarily deprived of his right to liberty and speech.
Leading human rights watchdog, Amnesty International Friday decried communication lockdown in the Kashmir Valley saying the ban was enabling a range of human rights violations
Blanket and indefinite suspensions of telecommunications services do not meet international human rights standards. These shutdowns affect the ability of phone and internet users in Kashmir to seek, receive, and impart information, which is an integral part of the right to freedom of expression Amnesty said in a statement.
The restrictions on access to telephones, in particular, jeopardize a range of other human rights as well, including the right to life, Amnesty said.
Amnesty International India has accessed a letter from two telecom industry bodies to the Union Ministry of Communications asking for restrictions on voice services to be lifted. The letter, written by the Cellular Operators Association of India and the Association of Unified Telecom Service Providers on 15 July, states, We submit that complete shutdown of telecom network would lead to further anxiety in general public people and therefore voice services should not have been barred.
Shutting down communications networks means that the government cannot itself also use these networks to disseminate important information to people.
The UN Special Rapporteur on freedom of expression and other global human rights experts have stated that shutting down entire parts of communications systems can never be justified under international human rights law.
Amnesty has urged the Jammu and Kashmir government to immediately lift the wide-ranging restrictions on mobile and internet services imposed in the state. Any restrictions must always be limited in duration and scope, demonstrably necessary and proportionate for a legitimate purpose defined under international law, and subject to review and appeal, including to courts.
Syed Riyaz Khawar, a lawyer at the Kashmir High Court said the mobile ban was in contravention with the Article 14 and 19 of the Indian Constitution. All citizens shall have the right (a) to freedom of speech and expression and (b) to assemble peaceably and without arms, Khawar quoted Article 19 in The Constitution of India 1949.
With the State owned BSNL operating without a little hindrance, Khawar quoted Section 10 of the Monopolies and Restrictive Trade Practices (MRTP) Act, 1969, that empowers the MRTP Commission to enquire into the monopolistic or restrictive trade practices upon a reference from the Central Government or upon its own knowledge or on information.
A Delhi based Supreme Court lawyer, Smita Dikshit told Kashmir Observer that no company can be allowed a monopoly in the name of security measures. The ban is not sustainable before law as the government cannot have a pick and choose policy.
From the security point of view, the ban turns completely on its head as it serves no purpose whatsoever. It’s a kind of mini emergency, so to say, a top police officer requesting anonymity, told Kashmir Observer. Looks like the government has enforced a ban knowing its inefficiency and a common man is made a scapegoat.
He said the police department is in fact ill-equipped to deal with such exigencies otherwise its relatively easy to identify trouble mongers without actually going to them. Look, if the mobile phones and internet was not taken off, we could have done a reality check on each and every individual inimical to the law and order in the state, he said. To deal with law and order exigencies states tend to curtail civil liberties.
The ongoing clampdown on the internet and mobile services in Kashmir by the Indian establishment is self defeating, said a Delhi-based peace activist, Sameer Gupta.Instead of calming down tempers, it will worsen the alienation that the man on the street feels.
In the backdrop of a major unrest that followed forcing around 7 million people indoors for last 17 days, other channels of information, too, were curtailed, not to mention a 5-day gag on local newspapers.
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