The Supreme Court Friday directed the Jammu and Kashmir administration to publish all orders related to restrictions, including suspension of telecom and internet services, to enable the affected persons to challenge them before the high court or other forum.
The court noted that though it was asked to go into the question of validity of orders, restricting movement and communication, passed in Jammu and Kashmir by various authorities, the orders were not placed before it.
While the petitioners and intervenors claimed that the orders were not available with them, the authorities cited difficulty in producing all of them before the court and only placed sample orders, the court said.
"While the State initially claimed privilege, it subsequently dropped the claim and produced certain sample orders, citing difficulty in producing all the orders before this Court. In our opinion, this is not a valid ground to refuse production of orders before the court," a 3-judge bench, headed by Justice N V Ramana, said in its 130-page verdict.
The bench, also comprising Justices R Subhash Reddy and B R Gavai, said: "The respondent State/ competent 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."
The judgement came on pleas filed by Anuradha Bhasin, Executive Editor of Kashmir Times and Congress leader Ghulam Nabi Azad which challenged the curbs imposed in Jammu and Kashmir after the Centre's abrogation of provisions of Article 370 on August 5 last year.
These pleas were different from another set of petitions which have challenged the constitutional validity of abrogation of Article 370, being heard by a separate 5-judge Constitution bench which will resume its hearing on January 21.
The bench said when a challenge is made regarding curtailment of fundamental rights as a result of any order passed or action taken by the State which is not easily available, it should take a proactive approach in ensuring that all the relevant orders are placed before the court, unless there is some specific ground of privilege or countervailing public interest to be balanced, which must be specifically claimed by the State on affidavit.
"In such cases, the court could determine whether, in the facts and circumstances, the privilege or public interest claim of the State overrides the interests of the petitioner. Such portion of the order can be redacted or such material can be claimed as privileged, if the State justifies such redaction on the grounds, as allowed under the law," it said.
The bench said while the non-availability of orders was not denied by the State, they did not produce it and when the court on a previous occasion asked them to produce the orders, the authorities places only sample orders.
The authorities cited difficulty in producing the numerous orders which were being withdrawn and modified on a day-to-day basis and had also claimed that the plea to produce orders by the petitioners was an expansion of the scope of the petitions.
The various petitions has direction to the authorities to produce the orders by which movement of all persons has been restricted since August 4, 2019 and the orders by way of which communication has been blocked there.
Giving the reasoning that mandates it to order production of the orders passed by the authorities, the court said Article 19 of the Constitution has been interpreted to mandate right to information as an important facet of the right to freedom of speech and expression.
"A democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know. Moreover, fundamental rights itself connote a qualitative requirement wherein the State has to act in a responsible manner to uphold Part III of the Constitution and not to take away these rights in an implied fashion or in casual and cavalier manner," it said.
There is no dispute that democracy entails free flow of information, it said adding that there is not only a normative expectation under the Constitution but also a requirement under natural law, that no law should be passed in a clandestine manner.
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