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By Inderjit Badhwar

Courts in India have inevitably become the arena to resolve issues concerning emergencies. Considering that our Constitution provides certain powers to the executive during the time of an Emergency, the courts have the mandate to intervene in cases where the rule of law has been disbanded by the executive.

An Emergency generally represents the epitome of the tussle between order, repression and liberty. We should note that while an Emergency is sometimes inevitable, it needs to be dealt with in a manner wherein normalcy can be attained as soon as possible. The present Emergency imposed upon Jammu & Kashmir following the abrogation of Article 370 which gave the state its special status, is a classic example wherein public order needs to be balanced with liberties enshrined under the Constitution. Courts, being the guardian of civil liberties, must function to protect the same from egregious violations and overt unlawful action of the authorities.

The task cut out for the Kashmir bench headed by Justice NV Ramana is therefore clear and constitutionally determined. It is well known that during an Emergency, there is a minority control of information with a select few. Especially at the beginning of an Emergency, there is a large possibility of imposing a blanket restriction which may be considered necessary to maintain appropriate levels of public order.

Given the virtual certainty that while undertaking such a massive exercise, the executive will be tempted to keep the information flow restricted, the Supreme Court in its order last week has affirmed that the first and most essential step in reviewing an Emergency by judicial standards and balancing the contrasting interests of the State and the individual is to seek information from those holding the information. It may be beneficial to record the conversation (paraphrased) which is reported to have taken place in the Court. (See accompanying box).

Court Proceedings in Verbatim on 16.10.2019 [Court Room 3]

Justice Ramana (HJNVR): Reprimanded and enquired as to why no counter has been filed in some of the petitions, even after repeated orders/ opportunities.

Solicitor General Tushar Mehta (SG): Before we begin today’s hearing, I am ready with the fresh affidavits which list down the latest/ subsequent development which has taken place this week and after filing of the previous counter. Give me an hour and I can file the counter/reply immediately.

Sr Counsel Vrinda Grover (VG) & Santosh Hegde: My Lords, the gravity of the matter is such that immediate action is required from the government. Liberty of the people is at stake here. It is shocking that the government has not even furnished the orders pursuant to which the restrictions were imposed.

SG: My Lord, this is a very sensitive matter. We can’t furnish the orders to anyone and especially to the petitioners, as it is a matter of national interest and security.

Justice Gavai: You cannot furnish the orders to the judges also?

Sr Counsel H Ahmadi (HA): The liberty of people is at stake. They can’t even defend themselves. The government has to furnish the orders.

VG: My Lord, we have made specific prayers about furnishing of the records. So many days have passed and multiple hearings have taken place, still no orders have come from the government side.

SG: You can’t ask for something which you haven’t even pleaded for in your writ. Your prayer doesn’t even mention about the furnishing of the internet/communication shutdown orders. Moreover, we are not going to supply the orders to the petitioners or any other person, so that they can go and sit in appeal over those orders. We don’t want that.

Sr Counsel Dushyant Dave (DD): My Lord, my petition pertaining to Mr Ghulam Nabi Azad clearly mentions about furnishing of the shutdown and communication blockade orders, in the prayer clause. You can’t say it is outside the ambit of the petitions. Further, I object to the non-furnishing and sitting in appeal over orders remark/comment made by the learned SG.

SG: My Lord, we maintain our stand. Those orders cannot be published in public. However, we will give it for the perusal and consideration of My Lords.

HJNVR: Okay. You furnish the order for our consideration but if you do not want to make the orders public then you have to state on the affidavit as to why they cannot be given to the petitioners. You must indicate the reasons for claiming such privilege.

VG: My Lord, I would like to intervene and point out that my writ does have a prayer about the publication of these orders.

DD: My Lord, the SG cannot delay the matter. People are suffering. There is no connectivity for days.

SG: My Lord, we have already restored the connectivity.

DD: No connectivity has been restored as such. Only the post-paid services have been restored since yesterday, and that too, SMS services were suspended last evening itself. Internet is still not working.

Sr Counsel Abhishek Manu Singhvi (AMS): My Lord, I would like to point out a few things. The subscribers providing the post-paid mobile services are now charging an additional amount/charge for restoring the services. Considering the plight of the people, they can’t avail the services by paying these additional charges. Airtel has already waived off the charges. Other telecom service providers are yet to do the same and they may be directed for the same.

SG: Mr Singhvi can speak to me directly about this. I have no problem.

HJNVR: Mr Mehta, you must consider waiving off the additional charges. People may not be in a position to pay the additional fees/charges.

SG: My Lord, I’ll certainly deal with this. Mr Singhvi can speak to me personally outside this court.

HA: It is necessary to furnish the orders. There is urgency in the matter, and there has been recurring delay in furnishing the information.

HJNVR: Mr Ahmadi, before you said it, we have asked for it. We understand the urgency. They say that they will furnish the order. Let us decide then.

DD: My Lord, let no more opportunities be given to any of the sides. As the government has already taken ample opportunities to file counter. And, it is the last opportunity for both the sides.

HJNVR: Mr Dave, the instructions/orders are equally applicable on both the sides. Why is there a need to say it specifically?

DD: My Lord, we have complete faith in your lordships. It is just that it is a human rights matter and we are fighting with our hands tied at our back.

SG: My Lord, please have it on the 22nd October or sometime in the next week.

HJNVR: We have constituted a special bench on 22nd or 23rd. It might be difficult to accommodate this matter as the Election Commission has already published the notification.

DD: My Lord, this issue cannot be ignored as well.

HJNVR: Mr Mehta, you have to file the affidavit immediately and orders have to be furnished to us. Let the matter be heard on 24th /25th October 2019.

Justice Ramana reprimanded and enquired as to why the counter-affidavits were not filed in some petitions despite repeated opportunities. Several senior advocates representing various petitioners submitted that the liberty of the people was at stake and it was shocking that the government had not even furnished the orders pursuant to which the restrictions were imposed. (See accompanying box)

On the contrary, Solicitor General Tushar Mehta submitted that this matter was very sensitive and the orders could not be furnished as it was a matter of national interest.

When Justice Ramana and the bench persisted in asking whether the government would also refuse to furnish the orders to the Supreme Court, Mehta insisted that the orders could not be published but could be provided to the Court for perusal.

At this point, Justice Ramana asked Mehta to furnish orders for the Court’s consideration. In the event that the State was unwilling to place any order on record, an affidavit must be filed before the Court, stating the reasons why this information could not be given to  the petitioners.

The Court then dictated its order asking the government to produce its orders under which cell phone restrictions had been imposed state­wide, as well as those imposing restrictions under Section 144, CrPC. When Mehta claimed privilege on this issue, the Court responded that the government would have to file an affidavit explaining the reasons behind claiming such privilege for each order that it chose not to disclose.

The extent of information sought by the justices reflects a much deeper jurisprudential concept, which was the focus of the celebrated Hart-Fuller debate—regarding whether there was some inherent (natural) minimal requirement that every legal system must have. One of these requirements highlighted by Fuller related to the recognition that one of the most basic natural rights relates to informing the parties of the law and reasons behind the actions undertaken.

Our Constitution, unlike the French-style unilateralism giving immense power to the president to impose any amount of restrictions during an Emergency, carves out the role of the judiciary as an important part of the checks and balances within the constitutional scheme, which cannot be abrogated. The Supreme Court’s order, in directing release of information, clearly portrays that the Court is cognisant of its important role in ensuring that natural rights are not trampled unnecessarily.

The role of courts during an Emergency can also be distinguished into two separate types—macro-adjudication and micro-adjudication. The case of Jammu and Kashmir, interestingly, has both angles within its ambit. One of the questions before the five-judge bench of the Supreme Court, which is also presided over by Justice Ramana, deals with the constitutionality of Article 370 in addition to the legality of the imposition of Emergency by the centre in December 2018.

This can be called “macro-adjudication”. On the other hand, the cases concerning restrictions imposed on cellular services and habeas corpus can be termed “micro-adjudication”. The distinction, as established by settled jurisprudence, is that the Supreme Court’s role is more extensive while adjudicating at the micro level.

There is no doubt that the longer the likely period of the Emergency, the greater the need for judicial review. It is now contingent upon the government to explain its stand and to satisfy the conscience of the Court as to the legality, necessity and proportionality of the restrictions imposed upon the people of Jammu and Kashmir.

It was appropriate that, at the outset, the Court resolved to seek information concerning the restrictions imposed by the State before adjudicating on other considerations such as providing appropriate compensation if the actions are found to be unconstitutional. Three principles which appear to emanate from the order passed by the Supreme Court are, first, the recognition of the fact that the road to recovery starts from the first day, and with every passing day, the executive needs to provide reasons for the continuation of such restrictions to maintain public order; second is that the courts are willing to interfere and need to interfere at the micro level involving restrictions on individual liberties; third, the requirement of freedom of information so that the public has an awareness of the governmental necessity and the reasons behind such an imposition.

It is now expected that the government, which has taken steps to restrict the enshrined freedoms, will have to explain and prove with adequate reasons and supporting evidence why the measures adopted by it are not excessive or unconstitutional.

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