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MHA has no papers to ‘shut down’ J&K: Kerala HC calls internet basic right


By Venkatesh Nayak*
It has been more than three months since several parts of the State of Jammu and Kashmir (J&K) are without access to mobile telephony and 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 of India. 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 the Former Civil Servants Forum, the Union Home Minister (HM) is reported to have said that the restrictions are only in some minds and not in J&K (perhaps he referred to the minds of those opposed to the changes being imposed on J&K including Opposition Parties).
The Union Home Ministry has now confirmed the HM’s statement. A few days ago the Home Ministry has given a reply under the Right to Information Act, 2005 (RTI Act) saying, they do not have any papers relating to the restrictions on telecommunications imposed in that State. It has also claimed innocence of knowledge vis-a-vis the widely reported arrests and detentions of politicians and social activists who are residents of J&K.
The Union Home Minister is also reported to have asked participants at that the New Delhi event, whether lack of telephone services is a violation of fundamental rights. It appears that the Home Ministry officials slipped up in briefing him about the recent Kerala High Court’s finding 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 innocence of basic and crucial knowledge of rights, not only 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.

The RTI Intervention with the MHA

Three weeks after the Central Government successfully moved Parliament to take away the special protection given to J&K under the Constitution of India, on 30th August, 2019, I sought the following information from the Union Ministry of Home Affairs through an online RTI application:
“1) a clear photocopy of any order(s)/direction(s)/instruction(s) issued for suspending Internet and telecom services, in Jammu and Kashmir in August 2019;
2) a clear photocopy 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 clear photocopy 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 clear photocopy of any order(s)/direction(s)/instruction(s)/advisory(ies) issued requiring the departure of tourists from Jammu and Kashmir in 2019;
5) a clear photocopy 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 the 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 31 October, 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 the J&K’s own RTI Act of 2009 (which has been formally repealed by the J&K Reorganisation Act). Under the J&K’s RTI Act only local residents are eligible to file RTI applications with the State Government. Click here to read the RTI application and CPIOs’ replies.

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:
1) 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.
2) 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 detenues 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 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.
3) Further, 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 by 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.
4) Come 31st October, 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?

The Union HM seemed to be in doubt as to whether “lack of telephone services is a human rights violation” (or else he might have asserted that there was no such human right) 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 Internet is a fundamental right. It is unfortunate that the MHA officials had not updated him on this development or he could have spared himself the embarrassment of asking such a question.
On 19 September, 2019, in the matter of Faheema Shirin R. K. vs The State of Kerala & Ors., the Kerala High Court ruled that right to access Internet, particularly, through mobile telephone service providers is deemed to be a part of the rights 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 Internet by inmates after sunset. This progressive judgement 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 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.”
Although the judgement 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., 14th November, 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 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.
Meanwhile, I will do the usual appeals in this case and report back.

*Programme Head, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

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