Kashmir Crisis Day 160
In response to petitions filed against the communications blockade and other restrictions in Jammu and Kashmir since August, 5, the Supreme Court of India responded with lofty words on fundamental rights and free speech while failing to apply these principles in Kashmir. The internet blockade the longest ever on record, has ruined people’s lives, disrupting livelihood, education, and medical care. Below is a legal analysis by Kashmir legal scholar, Mirza Saaib Beg
On December 10, nearly 160 days after the Indian government cut off all communication in Kashmir, the Supreme Court of India asked the Indian government to review all blockade orders within 7 days. Given the absolute lack of critical engagement till now, some observers have termed this decision “encouraging” and international media even called it “a blow to the Hindu nationalist government.” However, a closer examination reveals the timid nature of the court’s stand in passing a judgment but not delivering justice. It is imperative to highlight the continued dereliction of duty by the Supreme Court of India by letting the Indian government off the hook.
While the Court has rightly observed that indefinite suspension of rights is an abuse of power and a direct violation of the telecom rules, the judgment refrains from striking it down. No reason has been provided why the order, that continues to inflict collective punishment on Kashmiris, has not been struck down. Having paralysed the lives of 8 million people, the longest shutdown of internet in any democracy is grossly unreasonable and outrageously disproportionate. By refraining from striking down the ban, the Supreme Court of India has underscored the fact that Indian courts treat Kashmir in an anomalous state of emergency where rule of law can be suspended on executive whim.
To add insult to injury, instead of exercising a judicial review, the court has directed an administrative review of the orders passed by government which will be conducted by bureaucrats appointed by the government.
The court has not ruled on the validity of the internet shutdown in Kashmir because the Indian government refused/failed to place the orders before the court, despite being directed to do so. For nearly 100 days no order was made public by the Indian government. There was no order in public domain that informed the public why this ban has been imposed. There was no official communication by the Government on how long it would last. An act that inflicted such sweeping punishment, against free speech, was shrouded in darkness. During the hearing on 16th of October, India’s solicitor General claimed privilege over the orders. He reportedly informed the court that the petitioners had no right to seek the orders since he may be required to withhold them from the petitioners for national security. When the petitioners suggested that the Government wanted to supress the Court from discharging its duties. The Chief Justice of India firmly replied, “we know our duties.”
Ironically, in June 2014, after a month in office, Prime Minister Narendra Modi asserted “our democracy will not sustain if we can’t guarantee freedom of speech and expression.”
By deflecting all calls for such disclosure, the Indian government has effectively delayed any opportunity of pursuing a legal remedy. It appears to be an exercise of grotesquely undemocratic means and the Supreme Court of India is vested with the power of judicial review to check such means. If the Supreme Court of India fails to rise to the occasion and exercise its power to ensure appropriate disclosure, it would amount to a repudiation of principles that the Court is expected to stand by.
Additionally, courts in Kashmir have been left in peril as hundreds of Kashmiri lawyers have been arrested, including presidents of various Bar Associations in Kashmir. An impact on democratic freedom can be remedied by the legal system but a dysfunctional legal system will render democratic rights meaningless. The situation is so grave that Chair of the Bar Council of England and Wales, Richard Atkins QC, and Chair of the Bar Human Rights Committee of England and Wales, Schona Jolly QC, wrote to India’s Prime Minister expressing concern over the arrest of lawyers.
The rights of citizens in the online world have to be treated with the same yardstick as the rights in the offline world. The internet shutdowns are a violation of the Kashmiri peoples’ right to freedom of speech and expression. In this regard, it is imperative to remind India of its international obligations. The reckless actions of the Indian government are in violation of the Article 25 and Article 19 of the Universal Declaration of Human Rights. In 1979, India ratified the International Covenant on Civil and Political Rights, which sets forth internationally recognized standards for the protection of freedom of expression. India is also a party to the International Covenant on Economic, Social and Cultural Rights. During the current blockade, UN representatives made statements reminding India that the restrictions are “without justification”, and “are inconsistent with the fundamental norms of necessity and proportionality.”
As the final arbiter of the law in India, the Supreme Court of India must appreciate that “national interest” as defined by a government in power, is not a ground that qualifies the test of reasonable restriction on fundamental rights and basic human rights.
In a bid to seek legitimacy of its moves in Kashmir and convey a sense of normalcy, amidst increasing questions being raised about the situation in the Valley, India organized a visit of foreign diplomats to Kashmir, a visit termed as a guided tour by opposition members of the Indian Parliament and Kashmiris. Diplomats for Australia, Gulf nations and European Union countries refused to participate in the tour. To this day, Indian politicians are still not allowed to freely visit Kashmir.
Many people, especially from very poor families, continue to remain in detention far away from home, causing enormous difficulties for their families. More than 400 detainees booked under the Public Safety Act remain in detention. Collective punishment of Kashmiris continues since August 5, 2019.
Detainees including those who attempted to protest, political activists and some lawmakers, have been freed only after signing a bond that guaranteed that they will not speak against government policies, or issue any public statements.
A mental health crisis is emerging as a result of the five and a half month long siege. Lack of access to education remains with schools still empty. With no access to the internet, health care continues to suffer and the economy continues to bleed, mostly as a result of the internet ban. There are also increasing communication controls being imposed such as asking people to register their Whatsapp groups with the police. The Kashmir Chamber of Commerce and Industry reported a decline of 62% in the handicrafts sector in the last five and half months with 50,000 artisans without work. Losses in other sectors are estimated to be over 1.5 billion
In the media:
Kashmir: SC beautifully articulates principle of fundamental rights—but fails to restore them
Anticolonial feminist solidarity and politics of location
A guided tour of foreign diplomats to Kashmir
During my Christmas in Kashmir, stories of survival, resistance and pain
Many lives have been lost: five month long internet blackout plunges Kashmir into crisis
August siege: Notes on the collective punishment in Kashmir
In Kashmir, a new year brings empty classrooms as lockdown continues
Decades of violence have pushed Kashmir to the brink of a mental health crisis
Poet’s soak in Kashmir’s long lament, some cling to hope
Death of India’s liberal self-image
Kashmir’s health care without the internet
Kashmir internet ban and the economy
Kashmir police want people to register their Whatsapp groups