The Wire:
New Delhi: Monday, October 07, 2019
For
more than two months now, several parts of the state of Jammu and Kashmir
(J&K) have been without access to mobile telephony and the Internet. The
shutdown was imposed around the time the Central government with parliament’s
approval made fundamental changes to J&K’s status under the constitution.
A
few weeks ago, the media reported the government’s claim that all landline
services across the state and post-paid mobile telephone services in some parts
of the Valley had been restored. Speaking at an event organised in New Delhi by
former civil servants, Union home minister Amit Shah said that the restrictions
are only in some minds and not in J&K. Evidently, he was referring to the
minds of those opposed to the changes being imposed on J&K, including the
opposition parties.
The
Union home ministry (MHA) has now confirmed Shah’s statement. A few days ago,
the MHA replied to a query under the Right to Information Act saying they it
did not have any papers relating to the restrictions on telecommunications
imposed in that state. It also claimed innocence of knowledge vis-a-vis the
widely reported arrest and detention of politicians and social activists who
are residents of J&K.
Shah
is also reported to have asked participants at that New Delhi event whether the
lack of telephone services is a violation of fundamental rights. It appears
that MHA officials slipped up in briefing him about the recent Kerala high
court’s judgment that access to the Internet, especially through mobile
telephone service providers, is a fundamental right deemed to be a part of the
right to life under Article 21 and the right to education guaranteed under
Article 21-A of the constitution.
As
a result of this lack of basic knowledge of rights, not only have the several
fundamental freedoms of Kashmiris, but also the rest of India’s right to know
have taken a severe beating under the enforced policy of “One Nation, One
Constitution.
RTI
intervention with the MHA
On
August 30, three weeks after the Central government successfully moved
parliament to take away the special protection given to J&K under the
Constitution of India, I sought the following information from the Union
Ministry of Home Affairs through an online RTI application:
1)
a copy of any order(s)/direction(s)/instruction(s) issued for suspending
Internet and telecom services, in Jammu and Kashmir in August 2019;
2)
a copy of any order(s)/direction(s)/instruction(s) issued for suspending radio
broadcasts and satellite television services in Jammu and Kashmir in August
2019;
3)
a copy of any order(s)/direction(s)/instruction(s)/advisory(ies) issued
requiring the Amarnath Yatra pilgrims to leave Jammu and Kashmir in 2019;
4)
a copy of any order(s)/direction(s)/instruction(s)/advisory(ies) issued
requiring the departure of tourists from Jammu and Kashmir in 2019;
5)
a copy of any order(s)/direction(s)/instruction(s) issued in July-August 2019
for detaining or arresting leaders and members of all political parties
currently active in Jammu and Kashmir;
6)
the names of political leaders and members of political parties belonging to
Jammu and Kashmir currently under detention or being held in police or judicial
custody along with the exact geographical address of the places of their
lodgement as on date;
7)
the title of the law, rule or regulation along with the text of the relevant
provision under which such political leaders and members of political parties
in Jammu and Kashmir who are placed under detention or being held in police or
judicial custody as on date;
8)
the names of Right to Information (RTI) activists in Jammu and Kashmir who have
been placed under detention or are being held in police or judicial custody and
their village/town/city of ordinary residence, along with the exact
geographical address of the places of their lodgement as on date;
9)
the title of the law, rule or regulation along with the text of the relevant
provision under which such RTI activists in Jammu and Kashmir have been placed
under detention or who are being held in police or judicial custody as on the
date of this RTI application;
10)
the names of other social activists in Jammu and Kashmir currently who have
been held under detention or are being held in police or judicial custody and
their village/ town/city of ordinary residence, along with the exact
geographical address of the places of their lodgement as on date; and
11)
the title of the law, rule or regulation along with the text of the relevant
provision under which such social activists in Jammu and Kashmir have been
placed under detention or who are being held in police or judicial custody as
on date.”
The
Central Public Information Officers (CPIOs) in the MHA seem to have played
soccer with my RTI application for a few of weeks, moving it from desk to desk
within the J&K division of the ministry. Both CPIOs eventually replied that
they did not have any of the information sought in my RTI application. The
second CPIO went a couple of steps further ahead to tell me that he could not
transfer the RTI application to J&K as it was not covered by the Central
RTI Act (On October 31, 2019 the Central RTI Act will become operational in
J&K and Ladakh because of the Jammu and Kashmir Reorganisation Act, 2019).
He
also said I could seek the same information from J&K if I were eligible to
so do under J&K’s own RTI Act of 2009 (which has been formally repealed by
the J&K Reorganisation Act). Under J&K’s RTI Act only local residents
are eligible to file RTI applications with the state government.
What
is wrong with the home ministry’s RTI replies?
There
are multiple problems with the CPIOs’ replies which indicate lack of due
application of mind to the issues involved.
First,
since 19 December, 2018, the state of J&K has been placed under President’s
Rule imposed under Article 356 of the Constitution. All powers of the governor
and the state legislature stand transferred to the President of India. The work
of the state government is being carried out under the guidance of the Central
government through the state’s governor, who has only babus to run the
administration. Any order imposing curbs
on travel and telecommunications will at least be copied to the Union home ministry
in which the J&K division is housed, if not actually directed by the MHA.
So the CPIOs’ replies that they have no information about the curbs imposed and
the arrests and detention of residents of J&K are not based on truth and
reality.
Second,
the newly constituted Parliamentary Standing Committee on Home Affairs is
reported to have sought extensive information about the situation in J&K
including data about arrests and detenus of the very categories of people I
mentioned in my RTI application. Ordinarily, the MHA has a duty to provide this
information to the parliamentary committee unless it makes a compelling case to
withhold it from the committee in the interests of protecting national
security. If the MHA gives this information to the committee, I will be
entitled to receive it thanks to the proviso underlying Section 8(1)(j) of the
RTI Act. According to this proviso, information which cannot be denied to
parliament or a state legislature, shall not be denied to any person formally
seeking it under the Act.
Third,
orders imposing curbs on people’s movement and telecommunication services are
decisions which affect the public at large. Not only people residing in J&K
and their relatives and friends based outside but others like me who have
friends and well wishers in J&K are affected by such curbs. So under
Section 4(1)(c) and 4(1)(d) of the Central RTI Act, everybody has the right to
know all relevant facts that led to the imposition of the curbs and the
justification for such administrative decisions. Both provisions can be found
in J&K’s RTI Act also. Whichever government that imposed such curbs in
J&K has not only kept those orders away from the public gaze but also
refused to explain why such curbs are necessary over such a long period of
time. In fact this is the core issue in at least one of the petitions pending
in the Supreme Court of India filed by a local mediaperson. The apex court’s
lack of adequate speed in ruling on the legality of these curbs has come in to
a lot of public criticism too numerous to be cited here. In fact a cyber
satyagraha was observed across the country on Gandhiji’s 150 birth anniversary
(2nd October, 2019) to protest these curbs and express support to those
deprived of telecom services in J&K.
Now,
come October 31, the Central Criminal
Procedure Code, 1973 (CrPC) will replace J&K’s own criminal law. Section
41C of the Central CrPC requires every District Police Control Room to display
prominently on a notice board information about people arrested including their
names and other details and the details of the police officers effecting such
arrest. This will apply to all districts in J&K. Under the same statutory
provision, the J&K police headquarters will be under an obligation to
maintain a database of information about people arrested or detained, not for
its records but primarily for the reference of the general public. So this is
an obligation to be transparent about arrests and detentions by the time this
matter goes into appeals. The CPIOs have ignored all these matters while
drafting their replies to my RTI application.
Is
there a fundamental right to telephone services?
Amit
Shah seems to doubt whether the “lack of
telephone services is a human rights violation” at the public event he
addressed on the last day of September, 2019. Ten days earlier, the Kerala high
court had ruled that access to the Internet is a fundamental right. It is
unfortunate that MHA officials had not updated him on this development or he
could have spared himself the embarrassment of asking such a question.
On
September 19, 2019, in the matter of Faheema Shirin R. K. vs The State of
Kerala & Ors., the Kerala high court ruled that the right to access
Internet, particularly, through mobile telephone service providers is deemed to
be a part of the right to life and privacy under Article 21 of the constitution
and the right to education under Article 21A of the Constitution of India.
The
petitioner, an 18-year old girl student of a college affiliated to the
University of Calicut, challenged the discriminatory rule imposed by a warden
of a girls’ hostel banning the use of the Internet by inmates after sunset.
This progressive judgment received only cursory attention in media circles
whereas it should have been at the centre of the debate over the ongoing curbs
on communication in J&K. The court ruled that students have the right to
access the Internet through their mobile phones so long as they did not disturb
other hostel inmates. The court drew upon a slew of UN human rights
declarations and resolutions of the Human Rights Council, both arenas where the
Central Government has put in strenuous efforts to prevent and counter
criticism of its actions in J&K.
While
the hostel authorities justified the curbs imposed on access to the internet in
the name of “discipline”, the court rejected that argument observing as
follows:
“9…Though
instructions are to be obeyed by the inmates, is there any justification in
imposing such restrictions? However in this case the question to be examined is
whether such enforcement of discipline by restricting the use of mobile phones
would result in curtailing the right of the students to acquire knowledge by
different means. Using of mobile phones by itself would not cause any harm to
anyone. If a restriction is unreasonable and arbitrary and infringes the
fundamental right of an inmate, it cannot be said that the student has to abide
by such restriction, especially when the inmate is an adult…
18.
Though it is true that the principal of the college is the supreme authority to
enforce discipline as held by this Court in Manu Wilson’s case, Sojan Francis’
case, Indulekha Joseph’s case (supra) and that there cannot be any dispute that
rules and regulations lawfully framed are to be obeyed by the students and that
teachers are like foster parents who are required to look after, cultivate and
guide the students in their pursuit of education for maintaining excellence of
education, the rules should be modified in tune with the modernisation of the
technology so as to enable the students to acquire knowledge from all available
sources. It would be open to the authorities in the hostel to supervise whether
any distraction or disturbance is caused to other students on account of usage
of mobile phone or take action when any such complaint is received. The total
restriction on its use and the direction to surrender it during the study hours
is absolutely unwarranted. When the Human Rights Council of the United Nations
have found that right to access to Internet is a fundamental freedom and a tool
to ensure right to education, a rule or instruction which impairs the said
right of the students cannot be permitted to stand in the eye of law.
22.
I am of the view that what is required is a counselling for the students, as
well as parents in the colleges. The students in the hostels should be given
counselling in order to inculcate in them self restraint in the usage of mobile
phones, to make them capable of choosing the right path, to make them aware of
the consequence of misuse as well as advantage of its proper use. It should be
left to the students to choose the time for using mobile phone. The only
restriction that can be imposed is that they should not cause any disturbance
to other students. While acting in exercise of right to privacy, persons like
the petitioner shall also see that such exercise does not invade the right to
privacy of another student residing in the hostel especially in her room.”
(emphasis supplied)
Although
the judgment cited above has the force of law in Kerala only, it is a beacon of
light to shine while testing the validity and constitutionality of excessive
curbs imposed on telecom services not only in J&K but also other parts of
the country. All eyes will be on what the apex court will do on Children’s Day,
i.e., November 14, 2019 when the two
dozen petitions about J&K’s constitutional status and the state of affairs
in that region will be taken up again. In all probability, the Central government
will justify the curbs on telecom services on grounds of protecting the defence
and security interests of the state. How the apex court will test the
proportionality of these curbs will be watched with great interest in all
quarters.
(Venkatesh
Nayak is programme head of the Access to Information Programme of the
Commonwealth Human Rights Initiative.)
.JPG)
.JPG)
