SC seeks number of public transport vehicles plied since Aug 5 restrictions

TNN Bureau. Updated: 11/7/2019 9:46:39 AM Front Page

Communication curbs for 90 days not temporary, SC told

JAMMU: The Supreme Court on Wednesday asked the Centre and the Jammu and Kashmir administration to apprise it on Thursday how many public transport vehicles like buses and trucks plied there after restrictions were imposed following the abrogation of Article 370 provisions.
The direction came when senior Congress leader and former Chief Minister Ghulam Nabi Azad alleged that the public transport vehicles were not allowed to ply in Jammu and Kashmir which amounted to abrogation of fundamental rights like freedom to move freely and practise business.
The farmers could not transport apples and ailing persons could not go to hospitals for treatment, he claimed.
"Is there a ban on public transportation. Are they not allowing any buses or trucks," a three-judge bench headed by Justice N V Ramana asked.
"Tomorrow morning, first thing you have to tell us, as to how many buses, public transport, trucks have plied in the past days," he added.
Senior advocate and Congress leader Kapil Sibal, appearing for Azad, said "we all support the government on the issue of terrorism", but the issue is, can the lives of seven million citizens be "paralysed" and their fundamental rights, instead of being restricted, be abrogated altogether.
"A person, who had to take the chemotherapy dosage, could not go the hospital. Hospitals are open, but how do I reach there. Persons cannot take part in last rites because you have section 144 (CrPC) in place," he said.
"The question is you say that all the seven million people are not terrorist and few of them may misuse the freedom, then how to choose the (terrorist) people," the bench, which also comprised R Subhash Reddy and B R Gavai, asked.
The cross-border terrorism has been going on since 1990s and the difficulty in finding the miscreants on the part of the state does not mean that the authorities will abrogate fundamental rights of all the citizens, Sibal said.
"Detain them (terrorists), arrest them. Cross-border terror did not start today. Anyone can cross the border. It cannot be reason for shutting down everything on August 5," he said.
The senior lawyer though said that depending upon the fact of each case, the State is empowered to impose restrictions on the fundamental rights which, however, cannot be abrogated.
Azad had moved the top court in September seeking permission to visit Jammu and Kashmir to enquire about the wellbeing of his family members and natives of Kashmir valley.
At the outset, Sibal referred to a constitutional amendment and said the "internal disturbance" was no more a ground to invoke emergency under Article 352 and moreover, the communication blackout has nothing to do with public order maintenance.
The State can take over the business but cannot destroy it and ask its people not to go out of home and not to do their business and practise the profession, he said, adding that Azad has been stopped at the airport several times.
Sibal said that the apex court will be deciding for the first time a case like this where the fundamental rights of seven million people have been abrogated.
"Has the Supreme Court never decided an issue like this before. What had happened in 1970s during the Emergency," the bench asked.
Sibal said it was his interpretation that the Centre felt that if it changed the character of Article 370, then there would be unrest.
"But why not allow demonstrations to be carried peacefully," he said, adding that the state action gave the impression that people was "anti-nationals".
He said that a country of 1.2 billion people cannot in danger because of cross-border terrorism as "this country is too big and too mighty for that".
Sibal will resume advancing submissions on Thursday.
Earlier, the apex court had allowed Azad to visit four districts in Jammu and Kashmir for assessing the impact on life of daily wagers due to the present situation prevailing after the abrogation of Article 370 provisions.
Meanwhile, the counsel for Anuradha Bhasin, the executive editor of Kashmir Times, told the top court that shutting down mobile, landline and internet services for 90 days in Jammu and Kashmir was "by no means a temporary measure".
“The orders passed by the IGP, Kashmir range, shutting down the telecommunications services in the state, were prima facie illegal as an officer of the home secretary's rank was authorised to pass such orders,” a bench headed by Justice N V Ramana was told by lawyer Vrinda Grover, appearing in a case for Bhasin.
Referring to the provisions of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 and the Indian Telegraph Act, Grover said, "The orders have been issued by the Inspector General of Police, Kashmir range. But as per Rule 2(1), no one below the rank of the central or state home secretary has the authority to pass such orders."
Referring to an additional affidavit filed by the Jammu and Kashmir administration, the lawyer said the landline services were snapped on certain grounds, including misuse of data services, and termed it "bizarre".
Bhasin has challenged the restrictions imposed in the valley and alleged that those violated the freedom of speech and expression of the press.
"On the pretext of stopping misuse of data services, the state government shut down the landline services in the state," Grover said, adding that such kind of a communication blockade for a period of 90 days was "by no means a temporary measure".
At the outset, the lawyer said the orders passed by the administration were "without any application of mind", adding that one of those was for reducing the internet speed from 4G to 2G, but the internet was completely shut down in Jammu and Kashmir following the decision to abrogate Article 370.
"Is national security not a good ground for such a ban?," the bench, also comprising justices R Subhash Reddy and B R Gavai, asked.
"As per the administration, the orders were passed on the ground of law and order and not on the ground of security of the state," Grover said, adding that the authorities were not apprehending "a threat to the security of the nation".
"Law and order is different from public order. If there was a law-and-order problem like a ruckus inside the Supreme Court complex, then a few cops can control it. Such a situation does not call for an information blackout," she said, adding that in Jammu and Kashmir, it was only an "apprehension" of a law-and-order problem.
Freedom of speech and expression was necessary for the press, the fourth pillar of democracy, Grover said.
"Nowadays, the press seems to be the most important pillar, more powerful than the other three," the bench remarked.
"I do not know, it does not seem to be that way at least in Jammu and Kashmir," Grover replied.
The lawyer concluded her submissions in the case on Wednesday.
Earlier also, Grover had assailed the government's orders on restrictions on communications.
She had said that even after 90 days, communication services -- data, internet, pre-paid mobiles and SMS -- were not fully operational in the Kashmir Valley, affecting the working of the media.
"There is an absolute communications shutdown from August 4. It requires to be tested by this court. Yes, there can be reasonable restrictions on the rights under Article 19 (of the Constitution), but the same cannot extinguish the right itself," she had said.
Bhasin had earlier told the bench that the Centre and the Jammu and Kashmir administration had suppressed from the top court the orders and notifications, on the basis of which physical and communication restrictions were imposed in the valley.
However, the Jammu and Kashmir administration had said those orders and notifications would be placed before the top court, but could not be shared with the petitioners.

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