RESTRICTIONS IN NEW KASHMIR : REASONABLE OR ARBITRARY ?

-Divyanshu Joshi

INTRODUCTION (Restrictions Kashmir Arbitrary)

The Constitution of India contains the supreme law of the land. It is so rigid in essence that even the legislature is not empowered to change or amend the basic structure of the Constitution. The Constitution of India guarantees all its citizens certain fundamental rights, which cannot be taken away except according to a procedure established by law. After ruling out section 370 in Kashmir, several Restrictions were imposed which were Arbitrary to the freedom of speech and expression.

One such right is freedom of speech and expression which the government tries to curtail and censor so that nobody is able to criticize the government. This right is one of the most essential fundamental rights which is only subject to certain reasonable restrictions and no other. However, this is the most controversial right also, because often the citizens as well as the officials do wrongful acts and try to escape the consequences by using this right as a shield.

BACKGROUND (Restrictions Kashmir Arbitrary)

The matter is related to Jammu & Kashmir, which became a part of India after the signing of an agreement between the then Prime Minister Jawaharlal Nehru And Maharaja Hari Singh of the State of Jammu & Kashmir. This agreement gave a special status to the State of Jammu & Kashmir under which, it was allowed to have a different flag as well as a separate Constitution and no law of the Indian territory could be made applicable there, except prior consultation of the State Government has been taken. Article 370 was embedded in the Indian Constitution thus guaranteeing the special status to the State of Jammu & Kashmir.

India was divided, in 1947, to create a separate nation named Pakistan. After Independence, the most important task was to convince, around 540 princely states and kingdoms to become a part of the undivided Indian Territory. However, three regions, namely Hyderabad, Junagarh and Jammu & Kashmir were reluctant to become a part of India. Two of them finally agreed but Jammu & Kashmir were still not sure about becoming an Indian State. Finally, it joined the Indian territory through an agreement when Pakistan attacked and tried to conquer it. Since then India and Pakistan are fighting over the issue whether Jammu & Kashmir is a part of India or a free nation. Due to this, the situation at the Indo-Pak border is always very tensed. Pakistan always tries to promote terrorist activities near the border as well as keeps on conducting illegal military activities near the border.

Jammu & Kashmir being a hotspot of terrorist attacks and seditious activities have to face several restrictions. The Indian government often shuts down the internet as well as mass media in the State to keep the situation under control.

READ ALSO: SC HAS BEEN SLOW IN DEALING WITH KASHMIR PETITION: UNHC

CURRENT ISSUE

In an unprecedented move the, ruling Government of India, revoked article 370 of the Indian Constitution on 5th of August, 2019, thus removing the special status of the State of Jammu & Kashmir. It also declared that soon Jammu & Kashmir will be divided to form two separate Union territories. Removal of special status means that now all the laws of India will equally be applicable in Jammu & Kashmir also and it will not be allowed to use a separate Constitution and Flag. The Government was of the view that this step will help in the development of the Jammu & Kashmir region as well as in improving the human rights situation in the valley.

However, acting in contradiction with its own statement, the Government shut down all the mobile, landline, broadband and internet services in Jammu & Kashmir on the same date ( 5th August ). This was nothing new for the residents of Jammu & Kashmir, who are now habitual to such frequent internet shutdowns. According to the reports of internet shutdowns.in, this was the 53rd shutdown in the valley in 2019. There have been 176 such shutdowns in the last 8 years along with a six- month long, complete ban in 2016.

READ ALSO: AFFIDAVIT AGAINST MEDIA CURB IN KASHMIR

After the internet shutdown on 5th of August 2019, Anuradha Bhasin ( Executive Editor of Kashmir Times ), the daughter of Late Mr. Ved Bhasin founder of the daily newspaper Kashmir Times, moved the Supreme Court for removal of this internet ban. Advocate Vrinda Grover, appearing on the behalf of Anuradha Bhasin, argued that the government is empowered to put reasonable restrictions on the fundamental right of speech and expression, as enshrined in article 19 (1)(a) but the restrictions cannot be arbitrary so as to completely extinguish the freedom of speech and expression in Kashmir. She said that now the ban has exceeded for more than 90 days which is affecting media. While arguing before a three-judge bench comprising Justice N.V. Ramana, Justice R. Subhash Reddy and Justice B.R. Gavai, she said that orders were given for a slowdown of 3G and 4G speed, which in itself is an order given without application of mind, but the authorities completely blocked the internet. She also argued whether there is any proximate nexus between terrorist violence and the internet and that too when the ban has been for over 90 days now. The bench opined that such restriction is illegal and unconstitutional.

On Thursday, ( 14th November 2019 ) when the Court resumed hearing, senior advocate Kapil Sibbal appeared on the behalf of the petitioner and thrashed the imposition of section 144 Cr.P.C. in Kashmir. While the State Government claimed that such restrictions have been implemented in order to control the law and order situation in accordance with the constitutional changes being brought in Kashmir, Mr. Sibbal argued that the ban is now highly affecting services such as media, medical facilities, schools, etc. He also argued that fundamental rights must be protected and restrictions must only be kept on trouble makers and no others shall suffer. He also said that banning social media is justified but banning the internet is not at all justified as it is communication between two people only. The most important argument of Mr. Kapil Sibbal is that ‘ imposition on article 19 can only be imposed by law and not by executive action.’

READ ALSO: INTERVENTION IN PLEA AGAINST ABOLITION OF ARTICLE 370

QUESTION OF LAW

The question of law is whether the government is empowered to put as many restrictions as they want on article 19(1)(a) in the name of public interest or national interest. Another question was whether such restrictions that are arbitrary to law can be made by the executive action or only by law in Kashmir. The Court opined that only reasonable restrictions can be put on article 19(1)(a) and that too only on the grounds when it is in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence as given under article 19(2). However, such restrictions can only be imposed by making law and not merely by executive action.

CONCLUSION

According to many great scholars, the most important function of the state is to safeguard the rights of the citizens and when such rights are violated, the citizens have the right to ask for remedy, to the State. But what an individual can do when State itself imposes restrictions on such rights. In such situations only,  the democracy of any nation is tested. People should come forward and raise their voices against such restrictions and remind the State about its duty. This is how the true essence of democracy will remain unchanged.