J&K continues to be a case sui generis; abrogation of Article 370 notwithstanding. Prior to August 5, 2019, the special constitutional status was seen as a barrier to the fruits of democratic and developmental dividends reaching the people of J&K. At least that is how the abrogation was packaged.
As it turns out, the perceived deprivation has now become open discrimination. The latest order of the Supreme Court on the plea for restoration of 4G services is a case in point. It indicates that statutory laws and rules applicable everywhere else in the country are not being enforced in J&K. Not even in the times of a life debilitating pandemic!
In March 2020, the order restricting internet services at 2G speed was challenged in the Supreme Court and restoration of 4G sought on primarily two grounds. First, to ensure access to health and education which was severely impaired by the pandemic. The plea was that right to health and right to education in J &K, recognised under the ambit of Right to Life in the Constitution, was being infringed.
Second, the order was challenged in terms of the parameters set forth by the Supreme Court itself in its earlier judgement (Anuradha Bhasin versus Union of India, January 2020).
Instead of applying the law elucidated in January to the contentions brought forth by the petitioners in a post Covid situation, the Supreme Court, on May 11, 2020, set-up a special committee to decide on the issues of the petitioners as well as the concerns of the government.
In doing so, it even went beyond the laid out statutory mechanism and instead of directing compliance with law, set out a new procedure just for J&K. The court has upturned its own verdict and failed to uphold its own self-imposed standard by creating another procedure.
Most significantly, unlike in the past, this time around the petitioners had invoked the Right to Life. Earlier relief was sought on grounds of right to free speech/expression and trade/profession which have certain reasonable restrictions enshrined under the constitution. Unlike these two, a person can be deprived of right to life or personal liberty only according to procedure established by law i.e., the procedure has to be fair, just and more importantly reasonable, not fanciful, oppressive or arbitrary to impinge on the right to life. The plea raised against the authorities was not to deprive residents of J&K of infrastructure and facilities which were otherwise available across India during a pandemic.
In fact what is most distressing is that even the minimum standard set by the Court itself to restrict abuse of power has not been made the basis of determining either the legality of orders issued by the government or the enforcement of rights of the people of J&K.
The suspension orders were also challenged on the grounds that these did not reflect any review or sanction or application of mind or confirmation by the Review Committee as set forth in the Supreme Court’s earlier judgement.
Further, these orders were in place beyond the seven day restriction period and as an ex-facie case of violation of statutory law and rules as well as the directions of the Supreme Court.
Rather than recognizing, let alone rectifying, this abuse and contemptuous conduct of the UT administration, the Judiciary has rewarded the executive for its impudence; handing over the reins of justice to it by effectively delegating the determination of right! Remember, at the moment there is no functioning legislative institutions in J&K. In the process, the Supreme Court has abdicated its responsibilities.
To add insult to injury, this judgement came out at a time when the valley was under a fresh set of internet restrictions with even the 2G services suspended. The extent of executive discretion and sheer abuse is demonstrated by the fact the recent orders for restriction of telecom services in the valley have not been even published.
Thus, even after its own observation that “there can be no greater legal monstrosity than a secret statute” and clear directions to publish orders imposing restrictions, the Courts cannot be expected to condemn the reprehensible conduct of the executive. The more egregious violation to rule of law is that the court accedes to these transgressions and fails to hold the executive to account and defers to their decision. This is a new low.
With no order available in the public domain, it was impossible for anyone to challenge or subject it to any judicial review.
The latest judgment of May 11th, 2020, has undone the small gains made in the earlier case ( Anuradha Bhasin v. Union of India). This 110-page judgement of January, 2020 had reiterated and developed the law on reasonable restrictions for curbing freedom of speech and trade. Even though, there was no adequate or effective relief / remedy to the petitioners, there were a few important gains:
First, the court did not accord a blanket legal impunity to acts of the government on the grounds that their actions were in the interest of national security or to curb violence.
Second, the court directed the government to follow the statutory law and rules related to suspension of telecom services. The law of the land being to ensure that suspension orders issued are reviewed by a Review Committee constituted under the Temporary Suspension of Telecom Services (Public Emergency or Public Services) Rules, 2017.
Third, a crucial invention by the court to curb abuse of powers in issuance of the internet suspension orders was to provide a mechanism for periodic review of the suspension orders within seven working days. It had held quite reasonably that an order suspending internet services indefinitely is impermissible.
Fourth, importantly, the Court observed that an order suspending internet must adhere to principle of proportionality and any fresh order must follow the principles laid down in the judgment.
Curiously, the court did not decide on any suspension order since no such order was produced as the government initially claimed privilege and subsequently, cited difficulty in producing all the orders before the court. Only certain sample orders were produced for the courts review.
The court held that production of such orders was important since right to information was an important facet of freedom of speech and expression and also, a democracy entails a necessary free flow of information. It subsequently directed the government to publish all orders in force and future orders.
The recent decision has government reiteration of bald statements about terrorism, violence and national security, which were already considered and decided against in January when the Court took five months after the petitioners approached the court in August 2019.
This despite the fact that the brazen disregard in the new suspension orders for the statuary law and rules as well as the parameters set forth in the earlier decision were highlighted by the current petitioners.
Even the rationale of the nexus between internet and terrorism was questioned since such a contention is not supported by any study or report and in fact, the incidents of militancy have reduced since the advent of internet in Jammu and Kashmir. The nexus is a necessary limb to determine the proportionality, reasonableness and extent of the government measure.
The upshot of the verdict is that restriction on life or personal liberty in terms of procedure established by law extends to all parts of India, except J&K. The judgement gives legal sanction to discriminatory treatment towards J&K wherein the provisions of law have less force and meaning.
It can safely be concluded that the right to life under the constitution would appear as a mercy or grant at the behest of the government rather than an innate fundamental human right in J&K. So, what is new?
(The writer is a New Delhi based lawyer)