Justice delivery for J & K during Covid-19: Article 32 not suspended, but useless

There is no emergency in India. There is no President's Rule in Jammu and Kashmir. Long before entire country was under lockdown, the state of J & K was brought under lockdown.

Since August 5, 2019, the people in J & K do not have complete 'internet' facility along with several other general and ordinary life related facilities because of the decision of the Centre to abrogate the substance of Article 370.

Article 32 was not suspended for the people of Jammu and Kashmir. They are free to approach Supreme Court for enforcement of their fundamental rights.

But there is one single and major obstacle. That is their internet link is snapped. Can anyone imagine, just because 4G internet services are not made available to the people of one State, their fundamental rights are hanging in balance.

It is not possible for an illegally arrested person to approach the Supreme Court, neither physically nor virtually. They cannot come physically because of the Covid-19 restrictions. They cannot link through internet because services are snapped.

The virtual courts in Covid-19 days, a serious threat to justice through virtual hearings is the real political control over the internet technology.

The burning example of the en masse denial of rights through banning the internet in Jammu and Kashmir. For virtual hearings, everyone- Advocates, clients and SC should have enough bandwidth on internet, besides having proper connectivity.

The SC communication on May 3, said that since smooth functioning of the video conference is squarely dependent upon and subject to the connectivity (signal-strength/bandwidth) available at the end of the remote user(s), and hence it is expected that any party joining a video-conference hearing shall ensure robust connectivity and bandwidth are available at their end – in this regard, parties may also ensure that no other device or application is connected to or using the bandwidth when the hearing by video conferencing is progressing on the video enabled computer".

Executive controls

While TRAI is a regulator of internet communication, the complete control over technology is in the hands of political Executive, which factor is proved in the present-day status of Jammu and Kashmir.

The 4G connectivity of internet is taken away by the Union Government citing the need to control terrorism. With the lack of 4G enabled connectivity, the victims of abuse of power in J & K are not able to seek justice by enforcing Article 32, which is not specifically suspended today.

It is not possible to have hearing on their habeas corpus petitions in the Supreme Court from J & K, which is under lockdown since 5 August 2019.

This ban on high-speed 4G internet has resulted in additional difficulties in hearing of cases through video conferencing. On April 28, a bench had to adjourn a case "on account of poor connectivity" and "non-availability of proper video conferencing facility ". Ban imposed by the Union government is the real control that could deny the access to justice.

Is Article 32 suspended?

It is unconstitutional to deny any person from using Article 32. If a Bench of HC or for same reason, if the SC cannot connect to petitioner in Kashmir or his advocate, its serious interference with the judicial functioning apart from denial of constitutional rights of the people without any formal suspension.

Its atrocious. Several habeas Corpus petitions and PILs from Kashmir could not be taken up because of this technology denial.

Chief Justice of J & K Gita Mittal said in a webinar recently: "Now I had to hear lawyers and parties-in-person sitting in Srinagar as well as in Jammu. So, on any particular day of hearing, I have at least 15 parties in the matter — so I have about 8 people on the screen before me and all the others who have difficulties in hearing are joined either by video call or WhatsApp call or on a landline.

I have had to innovate but we have done very well in Jammu & Kashmir". She also had hearing matters over phone calls.Justice Mittal also said that people also need to talk about trials courts in context of virtualisation of courts.

The CJ further explained: "That is where justice has to be delivered and that is where the common man and woman go first for justice. That is where there is a huge infrastructure deficit. " Thus, political denial and infrastructure deficit stops justice from reaching the needy whether during or after Covid19.

The Supreme Court accepted that the government has violated its order in Anuradha Bhasin case , but unfortunately did not apply the relevant principles laid down in that case.

It has spelt out its decision upon the constitutional validity of the internet suspension but asked a "Special Committee" – composed of members of the executive to take appropriate decision .

Besides the democracy, life, civil liberties, the judicial functioning will also become totally dependent upon the decision of that Government's Special Committee on internet restrictions in J & K.

Two norms of Anuradha Bhasin case not followed are: a) the minimal requirement for any suspension order to be lawful is that it must list the reasons for imposing restrictions, b) any restrictions on the freedom of speech must satisfy the "proportionality" test – which means the restrictions must be a proportionate response to the aim sought to be achieved through the restrictions.

Thus, this is a judiciary vs executive challenge that could prevent 'independent' judiciary from discharging constitutional obligation without clearance from the Government. One important state is suffering because of the ban on internet.

The Private Schools Association, Jammu & Kashmir (PSAJK) filed a PIL contending that the lack of 4G connectivity for internet in Jammu and Kashmir is infringing the fundamental right to education.

The PSAJK is an association of over 2,200 schools and the plea has been preferred challenging Government Orders dated 18.01.2020, 24.01.2020, 26.03.2020 and 03.04.2020 which led to the imposition of restriction(s) on Internet Speed .

A web portal news magazine commented: 2G internet was first restored in parts of the region on January 14, but only "whitelisted" sites were permitted to be accessed over the network.

The number of whitelisted websites was gradually increased through the seven subsequent orders, until all websites were finally made accessible over 2G on March 4. Is it not similarly possible to selectively allow 4G access to some websites while permitting 2G access to others?

While this situation is specific to Kashmir, generally the 'control' over the technology really decides the judicial process, which is not constitutionally acceptable. The 'ban'' has its repercussions in Supreme Court.

Even if the apex court lists a PIL or Habeas Corpus petition, it cannot hear because of this denial of internet and the person in illegal incarceration will have no remedy. This atrocious power in the hands of technology is cause of wholesale or bulk denial of human/Constitutional rights of the people in Kashmir.

a) Virtual hearing cannot replace the court room hearings, without establishing infrastructural equality in terms of internet connectivity and bandwidth, removing the disparity of technology haves and have-nots.

b) Political ban on internet will seriously undermine judicial independence and deny the people the fundamental right to use Article 32, which is the heart of Indian Constitution and imaginative creation of Dr B R Ambedkar. The ban on Jammy & Kashmir is a blot on democracy as that snaps several fundamental rights including article 32.

c) Non-judicial officer's control over video conferencing could result in denial of principles of natural justice and end up without hearing the two sides. This must be completely prevented. If not, it will become ridiculous tv debate where anchor will not allow other point of view, or debate in legislature where speaker prevents opposition from speaking.

(The writer is former Central Information Commissioner and Professor at Bennett University)