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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL WRIT JURISDICTION
Writ Petition (Civil) 1031 & 1 164 of 2019 IN THE MATTER OF: Anuradha Bhasin ... Petitioner vs. Union of India & Ors. ... Respondent(s) CONSOLIDATED WRITTEN SUBMISSIONS OF THE PETITIONERS AND INTERVENORS
1. Pursuant to the order of this Hon’ble Court dated 27.11.2019, the Petitioners (Anuradha Bhasin in WP (Civil) 1031 of 2019 and Ghulam Nabi Azad in WP (Civil) 1164 of 2019) and the Intervenors supporting the Petitioners are filing consolidated written submissions, as well as a convenience compilation in respect of all loose documents handed over or referenced in this Hon’ble Court during the course of the hearing. During the course of the hearing three sets of written submissions were tendered by Senior Advocates Mr. Huzefa Ahmadi, Mr. Dushyant Dave and Ms. Meenakshi Arora. While their arguments have been incorporated into this document, their separate written submissions have also been annexed for ready reference of this Hon’ble Court. 2. The captioned writ petitions raise substantial questions of law with respect to the constitutionality of communication shut-downs and restrictions upon the freedom of movement, assembly, and association, particularly a shutdown which brought to a standstill the lives of 7 million people of the Kashmir valley and severely impacted the lives of a further 5 million people in the Jammu and Ladakh region. In the history of independent India, restrictions at such scale have never been imposed in absence of a formal declaration of an emergency under the Constitution. It is therefore submitted, that this case for the first time raises the issues of imposition of emergency like restrictions in the absence of declaration of an emergency. 3. These written submissions will first address the importance of the freedom of speech under Article 19(1)(a) of the Constitution (A) and the factual backdrop in which the case arises (B). Thereafter, the submissions address the following legal arguments: First, the communication shut-down orders are ultra vires the Temporary Telecom Suspension Rules, under whose authority they have been passed ( I ); secondly , the communication shut-down violates Article 19(1)(a) of the Constitution, and fails the test of proportionality under Article 19(2) ( II );
thirdly , the restrictions also fails the test of over-breadth under Article 19(2) ( III ); fourthly , that the restrictions upon communication have caused a chilling effect upon the exercise of fundamental rights and freedoms ( IV ); fifthly , the State’s arguments which amount to justifying an effective suspension of fundamental rights for an entire territory – cannot be made outside the four corners of Article 352 of the Constitution, i.e., a formal Emergency ( V ); sixthly , that the Section 144 orders violate the Constitution ( VI) ; seventhly , the State has failed to discharge its positive obligations to protect the rights of Citizens ( VII ); eighthly , the restrictions violate the international obligations of India under the ICCPR ( VIII ); ninthly , the State has failed to put place complete information before this Hon’ble Court ( IX ); and finally , the pleadings of the State attacking the Petitioner in WP (C) 1031/2019 are malafide and incorrect ( X ). PRELIMINARY SUBMISSIONS A. IMPORTANCE OF THE FREEDOM OF SPEECH AND RIGHT TO LIFE UNDER ARTICLE 19(1)(A) AND THE RIGHT TO LIFE UNDER ARTICLE 21
4. This Hon’ble Court has long held that the freedom of speech and expression under Article 19(1)(a) is a vital fundamental right, central to guaranteeing individual autonomy as well as a thriving democracy based upon a marketplace of ideas ( Brij Bhushan and Ors. vs. The State of Delhi, 1950 Supp SCR 245 (para 4); Sakal Papers (P) Ltd. v. Union of India, (1962) 3 SCR 842, 866; Bennet Coleman v. Union of India, (1972) 2 SCC 788 (para 98); Indian Express Newspapers (Bombay) Private Ltd. and Ors. vs. Union of India & Ors., (1985) 1 SCC 641 (para 32-6); Rangarajan and Ors. vs. P. Jagjeevan Ram and Ors., (1989) 2 SCC 574 (para 36-9)****. 5. The freedom of speech under Article 19(1)(a) has been consistently interpreted to include the right of the public to know and receive information. ( State of U.P. vs. Raj Narain and Ors., (1975) 4 SCC 428 (para 74); S. P. Gupta v. Union of India, 1981 Supp SCC 87 (para 64 - 7); Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 (SC) (para 68); Ministry of Information and Broadcasting, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161 (para 13, 43). 6. This Hon’ble Court has accordingly read the guarantee of the freedom of press into Article 19(1)(a). Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. v. Union of India and Ors., (1985) 1 SCC 641, para 32). For instance, in Ministry of Information and Broadcasting, Govt. of India v. Cricket Assn.
would not be palatable to governments and other authorities.” (Emphasis supplied)
8. In Sakal Papers (Pvt) Ltd v Union of India (1962) 3 SCR 842 , the use of indirect means to impinge on the freedom of newspapers by curtailing circulation was held unconstitutional: “ Its object thus is to regulate something which, as already stated, is directly related to the circulation of a newspaper. Since circulation of a newspaper is a part of the right of freedom of speech, the Act must be regarded as one directed against the freedom of speech. It has selected the fact or thing which is an essential and basic attribute of the conception of the freedom of speech viz., the right to circulate one's views to all whom one can reach or care to reach for the imposition of a restriction. It seeks to achieve its object of enabling what are termed the smaller newspapers to secure larger circulation by provisions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength. The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does so directly though it seeks to achieve the and by purporting to regulate the business aspect of a newspaper. Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved. ” (Emphasis supplied) 9. Furthermore, access to the internet is a basic and essential facet of the freedom of speech and expression and the Right to Know (including the right of the media to report freely). In addition, access to the internet is an indispensable requirement for access to various other fundamental rights, such as access to healthcare and statutory welfare schemes, to which persons are entitled in law. Today, the internet is an essential and basic attribute of news-reporting. Consequently, any interference with access to the internet is a direct violation of the right itself. As this Hon’ble Court has long held, fundamental rights
guaranteed under the Constitution also include ancillary guarantees that make those rights meaningful ( PUCL v Union of India , (2013) 10 SCC 1 ).
10. Access to the internet was judicially recognized as a fundamental right in a recent decision of the Kerala High Court in Faheema Shirin v. State of Kerala (W.P. Civil No. 19716 of 2019). The National Telcom Policy 2012 also recognizes the right to broadband connectivity as a “basic necessity like education and health.” (Kindly see pg 171 of the Enclosed Compilation). The widespread and indiscriminate communication shutdown, which was enforced by the Respondents in Kashmir from 04.08.2019 onwards, by removing the internet as a platform, effectively suspended the right itself, which suspension continues even on the date of filing this Written Submission. 11. In this context, the observations of the European Court of Human Rights, in its judgment in the case of Ahmet Yildirim v Turkey [Application 3111/2010] , on the role of the internet as a platform, are important: “48.. As regards the importance of Internet sites in the exercise of freedom of expression, the Court reiterates that, in Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2) (nos. 3002/03 and 23676/03, § 27, ECHR 2009 ), it found as follows: “In the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general.” [Reliance is placed on Paras 48, 50, 56, 58, 59, 68; The same view is reiterated in the case of Cengiz & Ors v Turkey, ECHR Applications No. 4822 of 2010 & 1427 of 2011 Paras 51, 52, 54, 55] 12. In the context of recognizing the role that the internet and an independent media play in a democracy, the Special Rapporteurs of the United Nations, namely: David Kaye Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; Michel Forst, Special Rapporteur on the situation of human rights defenders; Bernard Duhaime, Chair-Rapporteur, Working Group on Enforced or Involuntary Disappearances; Clement Nyaletsossi Voule, Special Rapporteur on the right to peaceful assembly and association; and Agnes Callamard, Special Rapporteur on extrajudicial, summary or arbitrary executions, had written a joint letter dated 16.08.2019 to the Union of India stating,
was published in The Gazette of India, vide which under the powers vested by Article 370(1) of the Constitution of India, Article 367(4) was added to the Constitution. Also on 05.08.2019, the Jammu and Kashmir Reorganisation Bill, 2019, was introduced in the Rajya Sabha, and passed. On 06.08.2019, the said Bill was passed by the Lok Sabha. The President’s assent was given to the Bill on 09.08.2019. The Gazette Notification, dt 09.08.2019 states that the Jammu and Kashmir Reorganisation Act, 2019, will come into effect from 31st October, 2019, and that there shall be a new Union Territory of Jammu and Kashmir. All of this was carried out while the State of Jammu and Kashmir was in a lockdown, and silenced through a communication shutdown.
16. In such circumstances the Kashmir Times’ Srinagar edition could not be distributed on 05.08.2019, and it could not be published thereafter from 06.08.2019 to 11.10.2019, as newspaper publication necessarily requires news gathering by reporters traveling across the Valley and unhindered interaction with public and officials. Due to the indiscriminate lockdown – including communication and internet blackout – and severe curbs on movement enforced by the Respondents, the Petitioner was prevented and hindered from carrying out her profession and work. Even after 11.10.2019, only a truncated copy of the newspaper is being published because of the severe restrictions in place even today (internet services and SMS services are completely shut down even after 115 days). The news portal / website is frozen till date. 17. It is submitted that a robust and independent media is the fourth estate of a democracy, and its freedoms are essential to the preservation of a democratic ethos in the day-to-day life of the society and polity. At a time when significant constitutional changes were being made that directly impact the people of Kashmir, it was even more incumbent on the Respondents to ensure robust press and media reportage was facilitated, so as to fuel debates, discussions and deliberations, which are the hallmarks of a functional democracy. 18. The absence of robust local news reporting due to the restrictions has led to a situation where the true facts on the ground have stayed unreported, leading to a contestation of facts and reports between various national and international news media outlets. It is reiterated that access to the internet forms a basic and essential attribute of news collection, publication, reporting, circulation and dissemination. By enforcing the communication shutdown, the Respondents have not restricted, but eroded, the freedom of speech of the Press and Media. 19. The prayers sought in the writ petition were:
a. Issue a writ in the nature of certiorari or in the nature of mandamus or any other appropriate writ, order or direction setting aside or quashing any and all order(s), notification(s), direction(s) and/or circular(s), whatever the case may be, issued by any of the Respondents herein or any other authority of the State, by/under which any and/or all modes of communication including Internet, mobile and fixed-line telecommunication services have been shutdown or suspended or in anyway made inaccessible or unavailable in any locality/area/district or division or region of the State of Jammu and Kashmir for being ultra vires, inter alia, Articles 14, 19 and 21 of the Constitution of India; and b. Pass an appropriate writ, order or direction directing the Respondents to immediately restore all modes of communication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide an enabling environment for the media to practice its profession; and c. Pass an appropriate writ, order or direction directing the Respondents to take any and all steps necessary ensuring free and safe movement of reporters, journalists and other media personnel; and d. Frame guidelines ensuring that the right and means of media personnel to report and publish news is not unreasonably curtailed through the issuance of orders by the Respondents or any other authority suspending telecom and/or internet services; [Kindly Refer to Prayers A-D @ Pg 21- 22 of the WP (Civil) 1031 of 2019] Writ Petition (Civil) 1164 of 2019
20. The Petitioner is the representative of the State of Jammu and Kashmir in Rajya Sabha and the Leader of Opposition in the Rajya Sabha. 21. Subsequent to August 5th, the Petitioner sought to travel to the State to reach out to the people and understand the concerns of the State of Jammu and Kashmir. However, he was not allowed to enter the State on three occasions, twice to Srinagar, when he flew on 8th August and 24th August, 2019 and once to Jammu on 20th August, 2019 and was made to return Delhi from the Airport. The Petitioner was only able to travel once pursuant to the order of this Hon’ble Court on 16.09.2019 passed in the captioned writ petition. 22. The Petitioner, in his petition, has brought to light the impact of the restrictions on the rights of the people of Jammu and Kashmir under Article 19 and 21, particularly in the following ways:
v. Writ of certiorari or any other appropriate writ to quash the action of the Respondents that has enabled a restriction on movement of persons in the State of Jammu and Kashmir as violative of Articles 14, 19, 21. (Prayers at pg 39-40, Writ Petition (Civil) 1164 of 2019).
24. Most of the restrictions outlined above continue to exist till date in the Kashmir valley, and – it is respectfully submitted – amount to an effective suspension of the fundamental rights of seven million people, under Articles 19 and 21 of the Constitution. The restrictions imposed by the State – the constitutionality of which requires adjudication by this Hon’ble Court – are outlined below: Restrictions Restrictions lasted/lasting for Remarks Landlines 31 days (approx.) By the State’s own admission there are only 43, landlines in Kashmir. That amounts to 1 landline per 1,623 people Post paid Mobile Phone voice calls 70 days (approx.) By the State’s own admission there are only 20,05, post-paid phones in the valley. Post Paid Mobile phone SMSes 115 days (continuing today) SMSes are essential to obtain OTPs, and carry out any transactions or verification of services. Prepaid Mobile phone voice calls 115 days (continuing today) The State, in its status report, has admitted that there exist a total of 59,76,359 mobile phones out of which only 20,05,293 phones are working. This means a majority of the phones of the people in Kashmir are not working. Prepaid Mobile SMSes 115 days (continuing today) SMSes are essential to obtain OTPs and carry out any
transactions or verifications of services. Internet on phones and broadband in Kashmir 115 days (continuing today) The internet is indispensable for all kinds of economic, educational and communicative activity including press reporting, and also impacts access to medical facilities. Restrictions on movement No clear response from the State on when restrictions were lifted or re-imposed. Restrictions on movement have prevented persons from carrying out their daily activities, and have also prevented persons from accessing hospitals and other forms of emergency care.
25. It is settled law that once it is established, prima facie , that fundamental rights have been restricted or infringed, the burden is on the State to justify their reasonableness under Articles 19 and 21. ( Khyerbari Tea Co. v. State of Assam, (1964) 5 SCR 975, para 35; In Re Ramlila Maidan Incident, (2012) 5 SCC 1, para 25 ). It is respectfully submitted that the State has miserably failed to discharge its burden in the present case. Instead, the State’s case has rested on a set of astonishing premises: first , that it is exempted even from showing the law and orders on the basis of which it has restricted rights and freedoms to such a degree; secondly , that this Hon’ble Court ought to adopt a highly deferential approach upon the invocation of “national security” as a justification for restrictions upon rights; and thirdly , that because the State – by its own admission – has proven incapable of distinguishing between a “minuscule minority” of people who may be under suspicion and the vast majority of innocent people, it is entitled to impose blanket and indiscriminate restrictions on millions of individuals. It is respectfully submitted that each of these three propositions are utterly foreign to Indian jurisprudence, productive of great public mischief, and being constitutionally untenable do not deserve any consideration by this Hon’ble Court. And in the absence of these three propositions – it shall be shown – the State’s case falls apart.
of the said Rules and are constitutionally untenable. It is pertinent to note that the communication shutdown has continued for more than 110 days, and that by no stretch of imagination could be construed as “temporary”. [ Kindly see Affidavit of the State of J&K dated 23.10.2019 at pgs 12- 19 ]
29. Since the Rules provide for the mechanism by which the State can temporarily interfere with the Fundamental Right of Freedom of Speech and Expression, including freedom of press, it requires strict compliance with the statutory framework to ensure that there is no misuse or abuse of authority, and to ensure that arbitrary, excessive and disproportionate orders are not passed to infringe core Fundamental Rights enshrined in the Constitution (for example, under Article 19(1)(a)). The Rules require rigorous adherence with the specific timeline stipulated by each sub-Rule, and they prescribe that the Orders suspending telecom services must be subjected to multiple levels of scrutiny and confirmation. 30. It is pertinent to note that the said Orders were never published or notified by the Respondents for public knowledge. The Petitioner in WP 1031 of 2019 sought copies of the said orders at the time of filing the Writ Petition through I.A. 121421 of 2019 ( Kindly see WP (Civil) 1031 of 2019, pg 65- 67 ). However, the same were not disclosed in the Limited Affidavit filed in Reply by the State of J&K dated 30.09.2019. Thereafter, the Petitioner filed her Rejoinder dated 12.10.2019, wherein detailed legal submissions were made qua The Temporary Telecom Suspension Rules of 2017 ( Kindly see Rejoinder Affidavit of the Petitioner dated 12.10.2019, Pg 13-4 at Para 16 ). It is only after pleadings were completed, and that too upon directions of this Hon’ble Court, that the Respondents by an Additional Affidavit dated 23.10.2019, placed on record the said Orders. 31. On a bare perusal of the said Orders, it is apparent why the Respondents were reluctant to place the said Orders before this Hon’ble Court for judicial scrutiny, as they reveal the manifest arbitrariness and illegality of the communication shutdown enforced by the Respondents in the Kashmir Valley. The legal grounds, as detailed below, on which the Orders have been assailed by the Petitioner, remain unrebutted and uncontroverted by the Respondents. (A) The Suspension Orders and Confirmation Orders reflect complete non- **application of mind and are manifestly arbitrary
- Order No. CS/KZ/19/2305-09 dated 04.08.2019 @ pg 12 of Addl. Affidavit** of State of J&K dated 23.10.
a) It is pertinent to note that in Para 16 at pg 8 of Addl Affidavit of State of J&K dated 23.10.2019, it is stated that “ in view of the apprehension of misuse of data services by anti national elements, which is likely to cause deterioration in law and order situation restriction/ban on mobile, internet and landline phones was imposed vide Order No. CS/KZ/19/2305-09 dated 04.08.2019. ” b) However, the Order No. CS/KZ/19/2305-09 dated 04.08.2019 at pg 12 only directs the concerned authorities to reduce internet speed and makes no reference to landline phones. It directs “ to reduce 3G/4G data services to 2G speed (Not more than 128 kbps) in entire Kashmir Valley”. c) Order No. CS/KZ/19/2305-09 is further confirmed vide Order No. Home/ISA/2017/Conf VIII @ pg 13 of Addl Affidavit of State of J&K dated 23.10.2019. The Confirmation Order is also only with respect to reducing the internet speed. d) Thus, Order No. CS/KZ/19/2305- 09 , contrary to the averment in Para 16 by the State of J&K, does not authorize a ban on mobile, internet and landline phones. Such a ban is thus manifestly illegal lacking any authority of law.
33. Order No. CS/KZ/19/2328-29 @ pg 14 of Addl Affidavit of State of J&K dated 23.10.2019 is issued for “ shut down of landline services ”, although the Order refers to an apprehension of misuse of data services and not of voice calling or landline services. Thus, there is patent non-application of mind as landline services for voice calling cannot be used for misuse of data services. 34. Order No. CS/KZ/19/2328- 29 is confirmed vide Order No. Home/ISA/2017/Conf XIII at pg 15 of Addl Affidavit of State of J&K dated 23.10.2019 on the same day. However, pertinently the Subject denoted in the Confirmation Order is not with regard to landlines but broadband. The subject of the confirmation order is, “Shut down of broadband services”, whereas the Order being confirmed had the subject, “Shutdown of Land Line Services”. Thus the Confirmation Order is completely at variance with the order requiring confirmation, betraying yet again complete arbitrariness and non-application of mind. There is no power vested in the Confirmation Authority to modify or change the subject of the Order under confirmation. 35. Order No. 1921 - 26 at pg 16 of Additional Affidavit of State of J&K dated 23.10.2019 directs a complete shutdown of mobile voice / mobile data services
such order may be issued by an officer not below the rank of Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or the State Home Secretary, as the case may be. Provided that the order for suspension of telecom services issued by the officer authorised by the Union Home Secretary or the State Home Secretary, shall be subject to the confirmation from the competent authority within 24 hours of issuing such order. Provided further that the order of suspension of telecom services shall cease to exist in case of failure of receipt of confirmation from the competent authority within the said period of 24 hours. ”
39. The suspension orders at Pg 12, 14 and 18 of Addl Affidavit of State of J&K dated 23.10.2019 are issued by the Inspector General of Police, Kashmir Zone; and the Order at Pg 16 of Addl Affidavit of State of J&K dated 23.10.2019 is issued by the Inspector General of Police, Jammu Zone. i. The IG of Police is not the competent person authorized to issue orders under Rule 2(1) of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. The Competent Authority as per the Rules is the Home Secretary (Govt of India or of concerned State as may be applicable) ii. No sudden or unavoidable emergency or circumstances: As per the Rules, only in unavoidable circumstances where obtaining prior direction is not feasible, the order may be issued by an officer not below the rank of Joint Secretary to Govt of India, duly authorized by the competent authority. Facts before this Hon’ble Court clearly disclose that the Union of India and State of J&K were making arrangements prior to 5th August, 2019, to deal with the fallout, if any, of the move to abrogate Art. 370. Travel advisory, movement of troops, shutting down of schools, return of Amarnath Yatris, etc., were some such measures. Thus, no sudden or unavoidable circumstances had arisen which necessitated this power to be delegated. The Orders passed by the IGs of Police are therefore without jurisdiction, ultra vires , non-est and lack authority of law, as they are in direct contravention of the Rules. iii. IG of Police not Competent Authority as he is not duly authorised: There is no order on record, nor any averment in the pleadings, about
the IG of Police having been duly authorised by the Home Secretary in terms of the Rules. A mere bald and belated averment made by the Respondent State in Para 3 of the Further Additional Affidavit dated 26.09.2019 unsubstantiated by any government order or document of authorization, does not meet the statutory requirement of due authorization in terms of Rule 2(1) of The Temporary Telecom Suspension Rules. It is humbly submitted that the said Affidavit does not redress the clear and absolute violation of Rule 2 of the concerned Rules. iv. It has been submitted by the Respondent State in para 32 at pg 28 of its Written Submissions, handed over on 26.11.2019, that the violation of the Rules pertaining to the IG of Police not being the competent authority has not been pleaded by the Petitioner. It is submitted that the legal submissions qua the violation of the Rules was pleaded in para 16 @ pg 13 of the Rejoinder of the Petitioner, WP (Civil) 1031 of 2019, dated 12.10.2019. The said Orders, revealing the designation of the authority issuing the Order, were only placed on record by the State of J&K vide Additional Affidavit dated 23.10.2019, subsequent to the filing of the Rejoinder by the Petitioner. In any event, if an Order is passed without jurisdiction and is ex-facie in violation of the Rules, its validity becomes a question of law which can be raised at any stage, and especially at the first opportunity to respond to the Orders after they were placed on record (which was when the Petitioner’s counsel addressed oral submissions). v. Even otherwise, the IG of Police cannot be authorised under the Rules: The word ‘officer’ in Rule 2(1) of The Temporary Telecom Suspension Rules must be read sui generis and cannot be construed to include a police officer. The non inclusion of police officers in the scope of the term ‘officer’ in Rule 2(1) is also manifest upon a reading of Rule 419A of The Indian Telegraph Rules (as amended on February 8, 2014), which is pari materia Rule 2(1) of the Temporary Telecom Suspension Rules. Rule 2(1) is a verbatim copy of Rule 419A upto the proviso to Rule 419A. In the Proviso to Rule 419A, the IG of Police is mentioned as the approving authority who is empowered to give prior approval for interception of messages in his capacity as Head or second senior most officer of the Security and Law Enforcement Agency. Non-inclusion of this proviso in Rule 2(1) is indicative of the legislative intent of not
judgments of this Hon’ble Court. (Kindly refer to Para 56 below for detailed submissions in this regard). A synopsis follows: i. “Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision- making.” – SN Mukherjee v. Union of India , (1990) 4 SCC 594, paras 36, 40) ii. Some element of certainty should be traceable in the material facts recorded in the Order. Bald use of generic phrases does not constitute reasons - In Re Ramlila Maidan Incident (2012) 5 SCC 1, paras 221 iii. “8… when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out… Orders are not like old wine becoming better as they grow older ” – M.S. Gill v Chief Election Commissioner , (1978) 1 SCC 405, para 8; State of Punjab & Ors****. v. Bandeep Singh & Ors. (2016) 1 SCC 724, para 4; Hindustan Petroleum Corp. Ltd****. v. Darius Shapur Chennai & Ors ., (2005) 7 SCC 627, para 21. (D) Mere bald, vague and unsubstantiated averment about Review Committee: the Orders violate Rule 2(5)
44. Rule 2(5) states that, “ The Central Government or the State Government, as the case may be, shall constitute a Review Committee... ” 45. It is not even averred by the Respondents in their pleadings whether any Review Committee in terms of Rule 2(5) was constituted or not, and whether the orders were forwarded to the said committee by the next working day as prescribed by the Rules. Only a mere bald, unsubstantiated and belated explanation is attempted vide the Further Additional Affidavit dated
26.11.2019 handed across during oral arguments of the State of J&K, wherein it is stated that the orders have been reviewed.
46. There is no averment by the Respondent State in any of its Affidavits with respect to the date of constitution and composition of the Review Committee as mandated under the Rules. The Respondent State has not placed on record before this Hon’ble Court any material facts or particulars with respect to the Review Committee. The Affidavits of the Respondent State are silent on whether the Orders were forwarded within the next working day, as required by Sub Rule (2). The submissions are thus bald, unsubstantiated and do not show compliance with the Rules. In the absence of pleadings and documents in support, the only inference possible is that Rule 2(5) was violated and the Review Committee was not set up as per the Rules. Most, importantly, the affidavits are silent on the point on the view of the Review Committee on how the orders comply with grounds under Section 5(2) of the Telegraph Act, 1885 when the orders use “law and order” as the basis of the action. In this context, it is respectfully submitted that as the matter concerns an infringement of fundamental rights, the burden of demonstrating that mandatory procedures were strictly complied with lies squarely upon the State. (E) No record of Review Committee meetings and no findings of Review Committee – Orders violate Rule 2(6) 47. Rule 2(6) states that Review Committee “shall” meet and record its findings within 5 working days whether the Orders are in accordance with Section 5(2) Indian Telegraph Act. i. No such findings have been placed on record, nor has any averment been made to that effect in the pleadings of the Respondents. Thus, the only inference that can be drawn is that the Orders are in blatant and complete violation of Rule 2(6) of The Temporary Telecom Suspension Rules. ii. Proviso to Section 5(2) of Indian Telegraph Act creates a special classification for the media: Proviso to Sec 5(2) states, “ Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section. ” iii. The Orders passed by the Respondents do not specifically mention that it shall include or cover the media. Consequently, they cannot provide the legal force for prohibiting the access of the media to internet and mobile
