‘What’s a Hashtag?’ Asks SC As Govt Justifies Kashmir Restrictions
On Tuesday, 26 November, the Supreme Court had to ask lawyers for the government of Jammu and Kashmir and the Centre to clarify what hashtags and the dark web are, after these featured prominently in the final arguments raised to defend the restrictions imposed there since the abrogation of Article 370.
Solicitor General Tushar Mehta resumed his arguments for the government in the morning, picking up from where he and Attorney General KK Venugopal had left off last Thursday.
To justify the restrictions imposed in J&K from 4 August onwards – including internet shutdowns and prohibitory orders under Section 144 of the Code of Criminal Procedure – Mehta sought to establish that there was sufficient material available in the public domain to justify the actions of the government.
Of Hashtags and the Dark Web
Much of the material referred to by Mehta consisted of tweets and other social media posts, whether by Kashmiri politicians like Mehbooba Mufti (on how India would become an occupying force like Israel in Palestine if they abrogated Article 370), separatists (who made secessionist statements) and Pakistani military personnel like Asif Ghafoor.
Mehta emphasised that the hashtags used with these tweets made them particularly dangerous as these allowed them to reach even more people – exacerbating the inherent problem with social media that it is unregulated and anyone can post what they want.
It was in response to this that Justice NV Ramana, presiding over the bench, asked what a hashtag was. Additional Solicitor General Vikramjit Banerjee was also called in to help explain.
Mehta had to then explain how it worked, reading out from an article which suggested that the only way to prevent access to the dark web was to cut the internet.
Mehta argued that Section 144 of the CrPC gives a District Magistrate the power to issue prohibitory orders as preventive measures to ensure there is no loss of life and in the interest of public order and national security. He said the material available in these tweets and other social media posts was sufficient for the DMs to issue Section 144 orders.
Mehta, next, controversially argued that it was not possible to block individual social media sites, which was why the internet had to be restricted in the Kashmir Valley, given the risk of separatism and militancy.
The petitioners pointed then, and later when they began their rejoinder, that it is possible to block individual sites, and even submitted a 2017 order in Jammu and Kashmir blocking social media sites and other specific websites, rather than the internet as a whole.
The petitioners and intervenors challenging the restrictions objected to this as it could mean that the court would pass an order on material they wouldn’t have a chance to rebut. They said if the government wanted to claim privilege, they should do so on affidavit.
The judges indicated that since they’d accommodated arguments by the intervenors to a greater extent than normally allowed, they were inclined to see what was being submitted in sealed covers, and pass it on to the petitioners if they thought it was alright to do so.
Kapil Sibal (appearing for Ghulam Nabi Azad) eventually convinced the judges to take a different route: presume that there were serious threats to national security, that there were cross-border threats – without taking what the government was trying to hand over in a sealed cover. The question of whether the restrictions were proportionate would still need to be assessed by the judges, even if this was presumed.
Mehta also sought to emphasise that the internet was a different animal, using articles by foreign authors on how it could be used by jihadi terrorists. He even went so far as to suggest that because of this special nature, the Supreme Court did not need to consider itself bound by older judgments of the apex court on the right to free speech and fundamental freedoms like the landmark Sakal Newspapers case (cited by the petitioners), as they could not have envisaged the possibilities of the internet.
Mehta wrapped up by arguing that when it came to decisions by a government on national security, the scope of judicial review by the judiciary was limited. If there was no evidence of bad faith (like orders being passed to unfairly target someone), then the judges only had to see if material had been put forward by the government to indicate national interest – the court could not go into the “sufficiency of the material”.
He concluded by saying that the restrictions in Jammu and Kashmir had been proportionate, with little to no restrictions in Jammu and Ladakh (which were relaxed swiftly), and the ones in Kashmir imposed to protect lives.
A Series of Strange Interventions
The hearing saw some moments of hilarity, from Justice Ramana quipping that “nothing is safe” during a brief exchange on whether Telegram or WhatsApp is a better option, to some ludicrous arguments by intervenors supporting the government’s restrictions in J&K.
One of them tried to get the judges to read some books on what happened to the Kashmir Pandits, another said he represented an organisation that supported the government’s “abrogation of rights” (something the government most certainly did not argue), while another claimed none of the petitions were maintainable as they included the State of J&K as a respondent but J&K was no longer a State after 5 August (blatantly untrue as the reorganisation only took effect on 31 October).
The only intervenor to actually present any legal arguments was the Press Council of India. Though it claimed that it was not supporting either side, the Press Council’s argument (based on its reading of the Aadhaar judgment of the Supreme Court in 2018) was that when the court was assessing whether or not the restrictions were proportionate, they should consider whether the restrictions were serving a public interest.
Such an approach would, presumably, give the benefit of the doubt to the government’s restrictions – a surprising position given these cases arose out of a petition by Kashmir Times editor Anuradha Bhasin, who had challenged the restrictions on the press.
Petitioners Begin Rejoinder
The petitioners and intervenors in the case – including Bhasin, Ghulam Nabi Azad, young Kashmiris and two journalists’ organisations – were to present a single rejoinder.
Bhasin’s lawyer, Vrinda Grover, briefly rebutted some of the contentions of the government, including that: (a) Bhasin was willfully not publishing her paper in Kashmir even after this was possible; and (b) that she had not brought the easing of restrictions to the court’s notice despite the government’s mentioning of these on affidavit.
Grover showed that the Kashmir Times was being published in Srinagar from 11 October onwards, and that her affidavits had noted certain relaxations of restrictions had been made as per information available in the public domain.
He said that if the government’s argument on such restrictions being justified were accepted, this would lead to a situation “worse than ADM Jabalpur” – the infamous Emergency-era decision of the Supreme Court that citizens couldn’t approach the courts during an Emergency over violations of even the right to life and personal liberty.
“he whole purpose of Article 19 is to balance the concerns of the State with the fundamental rights of citizens,” Sibal argued.
He took exception to the way in which the government submitted its status report about J&K only when it began arguing last Thursday, which meant the petitioners didn’t have time to respond to the claims in it.
He also called out the usage of OpIndia to discredit a report by IndiaSpend on problems with Ayushman Bharat implementation in J&K, saying the government should instead have got refutations from the doctors who had spoken to IndiaSpend. Criticisms of OpIndia on Wikipedia and the fact that it had been denied accreditation by the International Fact Checkers Network (IFCN) were also put forward.
Sibal then proceeded to offer rebuttals to several claims asserted by the government in that status report and the government’s affidavits to indicate normalcy in J&K and the reasonableness of its restrictions, using information in established newspapers like the Times of India, Economic Times and The Hindu.
These rebuttals included:
- how school attendance of 98 percent was only recorded because it was on a day when students had board exams;
- how contrary to the government’s claims that there had been no prohibitory orders in any of the police stations in Ladakh, there had been restrictions in Kargil;
- how there had been restrictions on public movement which weren’t just about stopping gatherings of groups;
- how the economy, including the apple industry, had been severely hit; and
- how public transport figures provided by the government (319 buses plying in the whole state on one day, doing barely 30 trips a day across the whole state) did not indicate normalcy.
The court had to break at 4 pm for the Supreme Court’s Law Day function, which President Ram Nath Kovind was coming for. Sibal will resume the rejoinders on Wednesday morning.
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