COURT SAYS YES TO INTERNET BUT J&K EMPTY-HANDED

There’s an old joke: A kid gave his teacher a drawing titled ‘cow eating grass’. The teacher looked at it and asked, “where’s the grass?” The kid responded, “the cow ate all of it.” The teacher asked, “where’s the cow?” The child replied, “it left because there’s no more grass.”

That about sums up the recent order of the Jammu and Kashmir government with respect to easing restrictions on internet services that was issued late evening on January 14, promising 400 extra internet kiosks in Kashmir Valley with bar on social media sites. The order said that broadband facilities would be restored to those providing essential services such as hospitals, banks, government offices, IT industry, trade and travel establishments in Kashmir. Kupwara and Handwara will also get 2G service. Leaving the general public and media persons in Kashmir out of this ambit of relief, the order emphasizes on the “complete restriction on social media applications.” But even the more privileged people now entitled to internet connectivity in the Valley will be deprived of the cyber skies beyond the white-listed 153 websites which exclude major news sites and even some higher institutes of education in Jammu and Kashmir. This is an adaptation of the Chinese and North Korean model of internet curbs and surveillance. In five districts of Jammu – Jammu, Samba, Kathua, Udhampur and Reasi, where internet is partially banned, the order indicated restoration of 2G services for post-paid mobile services with slow speed with effect from January 15, 2020 for a trial period of 7 days, after which the government would review if these online facilities should continue. Nothing is known about the review.

The order came four days after the Supreme Court verdict on a petition (filed by me) seeking restoration of communication curbs since August 5 last year when the Central government, in a sudden move, decided to scrap Article 370, strip Jammu and Kashmir of statehood status and divide it into two union territories. Among other things, the curbs were a major impediment for journalists and their free functioning. Several other petitions related to restrictions were clubbed together for a final hearing, five months after the main petition was filed. A bench of Justice NV Ramana, Justice R Subhash Reddy and Justice B R Gavai ordered the state administration to review all orders issued in this regard within a week.

This order is out of sync with the significant guiding principles that the court laid down. The court verdict was significant for three things that it laid down. One, that use of internet as an inviolable fundamental right. Two, that government cannot use arbitrary powers to ban internet or to impose restrictions like Section 144 for prolonged period. Three, that in case such restrictions are imposed, the government must bring into public domain detailed reasons for why this is being done. The court primarily recognised that the freedom of speech and expression includes the right to internet within Article 19 and restrictions on it have to follow principles of proportionality under Article 19(2). In light of this judgement, the internet connectivity should have been immediately restored. The government has circumvented these principles laid down in the Supreme Court verdict to prolong the agony of the public in Jammu and Kashmir and to perpetuate the restrictions.

Partly, this has been enabled by the lacunae in the verdict itself. The court, for instance, could have but did not order for immediate withdrawal of all restrictions on the basis of the significant principles it laid down. The verdict virtually threw the ball in the government’s court, asking it to review the internet curbs within a week and publish any orders on the basis of which it was imposing curbs, thus leaving room for the government to maneouver.

With respect to the restrictions on internet and other modes of communication decapacitating the media, the apex court observed that governments were “required to respect the freedom of the press at all times” and that “Journalists are to be accommodated in reporting and there is no justification for allowing a Sword of Damocles to hang over the press indefinitely.” However, court ruled that since there was no evidence placed on record, the petitioner’s (my) claim of having a chilling effect was a “mere emotive argument for self-serving purpose”, rather than a “legitimate claim”.

The petition was filed on August 10, 2019 when all forms of communication including the landline phones and mobile connectivity were barred apart from internet services. Barring half a dozen newspapers, the Valley was virtually without news. More than a month later, several other newspapers started publishing. Many of these newspapers were not regularly hitting the newsstands. All newspapers were publishing their truncated versions mostly without editorials and comment articles. The opinion pieces in others were carefully picking topics – from Cambodia to cleanliness, from benefits of walnuts to environment; not a word on the political and social impact of what happened post August 5. The news was mostly restricted to one-sided government versions of what was happening. The newspapers had been virtually reduced to pamphlets.

A newspaper is a medium of information; and its job is not only to highlight the achievements and actions of the government but also look at these critically and hold the government accountable. Its jobs is also to give voice to the ordinary people. None of this has been possible in Jammu and Kashmir since the reading down of Article 370 and the imposition of curbs that the action brought. A cursory look at the content in the newspapers being published in Kashmir would have highlighted the futility of their existence. A newspaper, after all, cannot only be measured by the length of its columns but also by the content it carries. The absence of content was an indication of the intimidating atmosphere, not an “emotive plea for self-serving purpose”. The only “self-serving purpose” that this newspaper has so far achieved is that it has virtually been deprived of government advertisements since I filed the petition.
The court selectively set aside evidence of element of fear that had been induced in the minds of professional journalists post August 5 due to the existing atmosphere, restrictions imposed on their movement, physical intimidation and the fact that the sole connectivity available at the government set up Media Facilitation Centre (set up around August 15) was not only inadequate with three-four computers for over 100 journalists but also constantly under surveillance.
Other than that, it also did not take into account the exceptional case of Kashmir Times, headquartered in Jammu, where editorial decisions are taken and where opinion pages are finalized. With erratic and very minimal internet facility at the Media Facilitation Centre, it was not possible till October 11 to both print our Srinagar edition and maintain its sustainability, unless we chose to do away with our editorials and opinion pages and were willing to simply publish government handouts peddled as news. The journalistic values could not be compromised in the name of existence.
The saddest aspect of the court verdict is that it took five months to decide on whether the right to internet was a fundamental right and that arbitrary powers could not be used to deprive public of this right. That was already ruled by the Kerala High Court on September 19, a month after my petition was filed, in response to a plea filed by students barred from internet connectivity in a college hostel. It took a few weeks to dispose of that petition. In upholding the same principles, the apex court took a total of five months, and almost four months after the Kerala High Court ruling.
Justice delayed is justice denied, it is said. The present case is worse than a simple delay.
The principles the Supreme Court laid down on January 10 will, of course, remain significant for the future across the country. The present, however, reveals that Kashmir may continue to be treated as an exception. The lacunae and the delay have been leveraged by the government to further prolong the longest ever internet ban in a democratic country. The government’s January 14 order stipulates a selective resumption of connectivity on grounds that “militants are communicating through Voice on Internet Protocol (VOIP) and encrypted mobile communication through various social media applications.”
But even the promise of 400 extra internet kiosks for the Valley and limited 2G services for five districts of Jammu remain on paper. One service provider said that it was impossible to provide low speed 2 G services. The technology is outdated, it maintains.
Even as the restoration of these facilities so far remains on paper, on Saturday, J&K Principal Secretary Rohit Kansal, announced that voice call and SMS services will restored for all pre-paid connections across Jammu and Kashmir with effect from January 18. Also, internet service providers have been asked to provide fixed-line internet connectivity in all the 10 districts of Jammu region and two districts, Kupwara and Bandipora, in North Kashmir.
There is, as yet, no word on making public the detailed orders stating reasons on why these bans were imposed in the first place. It would be interesting to watch what is delivered on the ground; and at what pace. Two weeks down the line, there is no change on the ground.
So, despite the celebratory ring of the verdict, it leaves the people of Jammu and Kashmir virtually empty-handed. As a friend remarked, “it’s a case of operation successful, patient dead.” The Valley, as a journalist colleague mentioned has been ‘kiosked’, the hill districts of Jammu region have minimal connectivity with complaints that it is snapped every few days (no reasons specified) and rest of Jammu appears to be the most privileged with only the broadband internet facilities.
The reading of the court verdict, which allows state the room for manipulation, and the recent government order demonstrate that this may remain so.
We can go on looking at the ‘cow eating the grass’ canvas.