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SC paves way for making public review order on J&K internet ban

New Delhi: Nudged by the Supreme Court, the Jammu and Kashmir government on Friday agreed to make public its orders reviewing the suspension of internet in Jammu and Kashmir even as the Court clarified that the reasons and deliberations that went into passing those orders need not be published.

The Supreme Court of India. (ANI)

The issue was brought to the Court by Foundation for Media Professionals (FMP) that objected to the reluctance of the J&K administration to follow the directions passed by the top court in two judgments passed in January 2020 (Anuradha Bhasin v Union of India) and May 2020 (FMP v Jammu & Kashmir), holding that the publication of orders imposing internet shutdowns is a must.

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The foundation on Friday expressed “surprise” over the reservations held by J&K while producing orders reviewing internet shutdowns in other states, including border states of Punjab, Assam and Arunachal Pradesh.

A bench headed by justice BR Gavai on Friday said, “Solicitor General Tushar Mehta submits that the respondent (J&K government) would not have any objection on publishing the review orders. We find the stand taken by the respondent is just and fair particularly when other states are willing to publish the same.”

The Court had on January 30 favoured publication of the review order claiming that such orders are not meant to be “kept in cupboard” and should be available in public domain for persons to challenge it before a court of law. On that day, the Court had given time for the union territory of J&K to take instructions on making the final review order public without disclosing the deliberations that went into the decision-making process owing to security concerns.

“We are not going into the aspect whether reasons have to be published. We will leave it to the court concerned (in the event any such order is challenged) to determine if the order is a reasoned one. It was indicated on January 30 that though it was not necessary to publish deliberations of the review committee, however, the final order shall be published,” said the bench, also comprising justices JB Pardiwala and Sandeep Mehta.

Solicitor general told the Court that the 2020 Anuradha Bhasin judgment only required publishing of orders suspending internet. He said, “The rules require the Review Committee to meet within 5 working days. This was meant to be an internal check and was not to be published.”

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The FMP represented by advocate Shadan Farasat pointed out that the two judgments cited by him referred to “all orders” relating to the ban. “I am surprised J&K is resisting it,” as he produced copies of review orders published by several states.

“You only want J&K review order to be published…Let our neighbours find out the reason (for the ban) on their own. This is politics being played here,” SG said. The bench refused to be drawn into the debate, stating, “We are only required to go into the legal question and nothing else.”

The order of the Court was passed on an application moved by FMP in 2020 challenging the internet shutdown in the UT for varied periods between January to April 2020 in the light of existing law and order and national security situation in J&K. These orders were withdrawn in February 2021 after a Special Committee headed by Union home secretary assessed the prevailing situation and recommended that the ban be withdrawn.

During a previous hearing, the Court remarked, “Review orders are not to be kept in the cupboard. Let the state show from the orders we have passed that there is no requirement to publish review orders.”

The UT administration had filed a short affidavit last year giving reasons for opposing the application. It said that neither the Anuradha Bhasin matter nor the subsequent order of May 11, 2020 in the FMP case required the UT to publish the review order.

“Decisions of the special committee (headed by MHA secretary) deal with highly sensitive and secret/confidential matters relating to militancy, terrorism, cross border infiltration, security and defence of the nation…Likewise, the deliberations and findings of the statutory review committee would stand on the same footing,” the affidavit said.

Apart from local administration, the special committee discusses and deliberates inputs received from armed forces, paramilitary forces, and security agencies in arriving at a final decision, and therefore such deliberations cannot be made public, the UT administration submitted, citing “national interest”.

In the Anuradha Bhasin judgment, the top court held that any ban clamping internet services cannot be indefinite as it violates the fundamental rights of citizens. It said, “The respondent state/public authorities are directed to publish all orders in force and any future orders under Section 144 CrPC and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the high court or appropriate forum.”

In a subsequent order passed in May 2020, the court said that a Special Committee headed by Union home secretary be constituted as a one-time measure to resolve the matter.

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