“We are slowly becoming a police state. And only your Lordships can stop that from happening.”
On Tuesday, 19 November, senior advocate Dushyant Dave delivered some powerful broadsides against the Centre’s actions in Jammu and Kashmir during a Supreme Court hearing on cases challenging the restrictions imposed in the erstwhile state at the time of the abrogation of Article 370.
Dave was arguing for the Foundation for Media Professionals, a journalists’ body which has intervened in the original petition filed in the apex court by Anuradha Bhasin, executive editor of The Kashmir Times.
In addition to his arguments against the restrictions themselves, Dave also took aim at the “casual approach” and “cavalier attitude” of the Modi government when it came to the cases in the Supreme Court, asserting that its affidavits failed to provide required information to justify the government’s actions.
The judges also expressed their displeasure at the government’s failure to provide certain status reports that had been asked for at a hearing on 7 November, as well as the absence of a senior lawyer for the government side during the hearings till now.
The hearings will resume on Thursday, 21 November, when Solicitor General Tushar Mehta is expected to begin arguments on behalf of the government.
The Petitions and the Arguments So Far
Bhasin’s petition includes specific arguments about how the lockdown restricts the ability of journalists to do their jobs and violates the right to freedom of speech and expression.
It has been tagged along with other challenges to the restrictions imposed on movement, telecommunications, etc in J&K since 5 August (some of these restrictions were put in place the day before as well), including by Congress leader Ghulam Nabi Azad, and some young Kashmiri lawyers.
Hearings in the case have been taking place before a bench of Justices NV Ramana, BR Gavai and R Subhash Reddy since 5 November.
- Vrinda Grover (representing Bhasin) had already presented detailed arguments on the illegality of the orders used to shut down the internet and phone services in the region.
- Kapil Sibal (representing Azad) led extensive arguments on why the general restrictions on movement, gathering, protests and public transport – imposed as prohibitory orders under Section 144 of the Code of Criminal Procedure – were unconstitutional.
- Huzefa Ahmadi (representing the Indian Journalists’ Union) made a comparison between the Centre’s stand in these cases – that it does not have to provide detailed justifications for its orders and the court cannot interfere in matters of national security – and that of the government in the infamous ADM Jabalpur case of 1976. Though the majority judgment in that case accepted the government argument that people could not approach the courts for protection of liberty during an Emergency, this was categorically overruled by the Supreme Court in the right to privacy judgment in 2017.
HR Khanna Meets Voltaire
The day began with Ahmadi continuing his argument from the previous hearing on 14 November.
Ahmadi noted that in the ADM Jabalpur case, at least there had been an imposition of Emergency. In the case of Jammu and Kashmir, the restrictions on civil liberties were being imposed under Section 144 of the Code of Criminal Procedure, which does not give the government such wide, sweeping powers.
In a twist of fate, Ahmadi’s arguments, including references to the famous dissenting judgment of Justice HR Khanna in the ADM Jabalpur case, took place in court no. 2, the new courtroom of Justice Ramana, in which a portrait of Justice Khanna hangs prominently on the far wall.
Ahmadi explained that ‘prohibitory orders’ under Section 144 couldn’t be imposed by the Centre or state governments, and had to be imposed at a district level by an executive magistrate – on the basis of material facts from the area. Instead, the orders imposed across J&K only referred to the “prevailing situation in the state”, without specific reasons for them in each district.
Another important argument raised by Ahmadi was on the proportionality test for restrictions on fundamental rights. This had been alluded to by Sibal in his arguments as well – the argument basically goes that even if there is a legitimate purpose to restrict fundamental rights, the restriction has to be the least intrusive possible and should not be disproportionate.
The restrictions in J&K essentially treated everyone as a criminal, a “presumption of criminality” that could not be legal in India even if there was a legitimate purpose behind them, Ahmadi argued.
He concluded by pointing out that the people of J&K had a right to protest against a measure they disliked, and that the government couldn’t take away this right entirely. He reminded the judges of the famous Voltairean principle on free speech that one may disagree with another’s point of view, but they should defend the other person’s right to hold that view.
From the Hong Kong Protests to the Constituent Assembly Debates
This was when Dave entered the fray.
He began his arguments by saying that it had been 106 days since the restrictions had been imposed in J&K. Justice Ramana took this to be a criticism of the judges for delaying hearing the case, but Dave clarified that the current three-judge bench had been hearing the case without delay, but that the government had delayed the whole process with requests for time.
He also suggested that the Supreme Court as an institution should perhaps have heard the matter earlier, noting that former Chief Justice Ranjan Gogoi had kept adjourning the case after they were filed in August till the beginning of October, when he transferred the cases to Justice Ramana.
“It would have been apt for the Supreme Court to put aside all other matters and it should have heard these cases urgently,” Dave argued, pointing out that the life and liberty of the people of J&K was at stake. “The rights of 7 million people are as important as anybody. They are as Indian as anybody.”
IS LIKELIHOOD OF TERRORISM ENOUGH?
He then turned to the “bogey of terrorism” used by the government to justify its actions in J&K. He began by referring to a 1999 judgment of the Israeli Supreme Court.
In this judgment, the Israeli court famously held that the courts could not countenance torture as a form of interrogation even if this meant the state was fighting with their hands tied behind their backs, and that the courts could not allow national security considerations to trump the law.
Dave pointed out that if this was how the law was to be interpreted in Israel, a country constantly threatened by terror threats, surely the government couldn’t suggest a different approach in India. “They can't take shelter under likelihood of terrorist acts”, he argued, “or they can next make this same argument anywhere in the country.”
THE EXAMPLE OF HONG KONG
His next argument seemed to strike a chord with several people in the courtroom. Huzefa Ahmadi had been appreciated for submitting to the judges the recent judgment of the Hong Kong High Court striking down the HK government’s ban on face masks as unconstitutional.
Dave used this to point to something else: that there had been weeks of protests in the Chinese territory, even violent protests, and yet the Communist government of China had not imposed blanket restrictions on these protests. The one restriction which had been imposed – on face masks – had also been struck down by the courts now.
THE FORESIGHT OF THE CONSTITUENT ASSEMBLY DEBATES
He then read out several evocative speeches from the Constituent Assembly Debates, to counter the government’s claims that the court had no authority to examine the decisions taken by the government for national security or in national interest.
Chief among these were statements by Dr BR Ambedkar, including the one where he said that Article 32 (which can be used by individuals to approach the Supreme Court for protection of fundamental rights) was the beating heart of the Constitution. Dave said Ambedkar had said this because the court was to play an important role to ensure a government elected with a majority couldn’t run roughshod over the fundamental rights:
“He had faith in your Lordships. He had faith in this institution. That no matter what happened in Parliament, you would protect liberty.”
Dave also referred to speeches in the Assembly by figures like KM Munshi, who observed that the Executive branch of government would seek to restrict liberties and increase their power in the name of national security – of which the lockdown in J&K was one example among several others across the country.
“We are slowly becoming a police state. And only your Lordships can stop that from happening,” he said pointedly to the judges, before later advising that: “You cannot allow individual liberty to be subsumed by social control.”
ILLEGAL RESTRICTIONS ON LIBERTY AND FREE SPEECH
Next, Dave took the judges through several landmark judgments of the Supreme Court in the 1960s dealing with the scope of restrictions that can be allowed on personal liberty. He drew their attention to how the judges in these verdicts had clearly held that restrictions on demonstrations and free speech could not be overbroad and impact the innocent and guilty alike.
He also addressed some arguments specifically in the context of the restrictions on internet and other telecom services, including
- That citizens had a fundamental right under Article 19(1)(a) to discuss and learn about “the burning topic of the day” (from the Sakal Papers case);
- That the government’s own telecom policy recognised that “telecom, including broadband connectivity as a basic necessity like education and health” (see Chapter 4, para 1.2 of the National Telecom Policy 2012 which remains in force).
In the context of these arguments, Dave once again took aim at the government’s “cavalier attitude” to the law, both when it came to imposing these restrictions in J&K, and also when it came to their affidavits in the case, which don’t go into the law on any of these issues and merely say the decisions were taken in the “national interest”.
He then wrapped up his arguments by imploring the Court to consider the legality of the government actions from August 2019 itself, not November 2019. He also strongly urged the judges not to accept any reasons or justifications from the government in a sealed cover – these needed to be provided on affidavit so that they could be appropriately responded to by the petitioners.
Airports More Important Than Hospitals?
Senior advocate Meenakshi Arora, appearing for the final set of intervenors arguing the government restrictions, started her arguments on Tuesday, but will only complete them on Thursday, the next date of hearing.
She began by asking whether a complete population of a state can be put under restraint under Section 144 for such an extended period of time, and termed the duration of the restrictions “inexplicable”.
After reminding everyone that SMS, prepaid mobile services and internet connectivity still hasn’t been restored in the J&K, she brought up an interesting aspect of these shutdown orders: that they exempted airports but not hospitals, even where internet access was essential to avail of services like the Ayushman Bharat insurance scheme.
“Are airports more important than people's health & medical treatment?” she asked plaintively.
Despite the judges having earlier said they would not agree to an adjournment in the case and that they would definitely hear it on Wednesday, at the request of Solicitor General Tushar Mehta, they agreed to conduct the next hearing on Thursday.
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