SRINAGAR: The Jammu and Kashmir High Court on Tuesday granted state government one more week to file objections to two petitions, challenging its ban on 22 social networking sites in Kashmir for one month since April 26.
A single bench of Justice Ramalingam Sudhakar granted the time “in the interest of justice” after Additional Advocate General B A Dar solicited two weeks time to file the reply.
The court also suggested review of the ban even as AAG insisted that social media has been misused to incite the violence in Kashmir and claimed that a number of people were killed because of the “mischief” played on the these sites.
The court has now posted the hearing of the petitions, filed by Raja Faisal Malik of Malikpora, Anantnag, and Bilal Ahmad Bhat of Shivpora Srinagar, on May 24.
Malik through his counsel, Advocate Salih Pirzada, questions the “democratic” state government’s decision to invoke the “archaic” legislation of 1885, introduced by the colonial British administration. “The colonial regime had enacted this legislation in the aftermath of the mutiny of 1857. The British came with this law so as to monopolise the telegraph being transferred from one place to another. Ironically, the current democratic government has invoked the same legislation which the British used to curb the freedom of people over 140 years back,” he said.
The banned social networking sites include Facebook, Twitter, WhatsApp, QQ, WeChat, Ozone, Tumblr, Google , Baidu, Skype, Viber, Line, Snapchat, Pinterest, Telegram and Reditt.
“The sub-clause 2 of section 5 of the archaic legislation, Indian Telegraph Act, 1885, cannot be used for the colourable exercise of maintaining ‘public order’,” he said, underlining that public order cannot be regulated by the provisions of the Indian Telegraph Act and “in any such eventuality, would amount to excessive delegation and a colourable exercise”.
The state’s home department, headed by Chief Minister Mehbooba, has in its order directed all internet service providers that “any message or class of messages to or from any persons or class of persons relating to any subject or any pictorial content through the following social networking sites shall not be transmitted in the Kashmir Valley, with immediate effect, for a period of one month or till further orders, whichever is earlier.”
“The object, as provided in the order for proscribing the selected access to internet, cannot be executed while employing the provisions of the central legislation when public safety falls within the domain of the state legislature,” he said.
Malik said that that the Information Technology Act, 2000, being a special law, will hold the field “if at all it is applicable, but the provisions of the Indian Telegraph Act, 1885, have no enforceability”.
The Indian Telegraph Act, Malik said, is neither enshrined with any provision which could govern the matter, nor could such a construction be given to the provisions of the Act of 1885 which would pragmatically render the special law redundant.
He said that the blocking of access to “arbitrarily selected websites” cannot be a pragmatic approach for maintenance of ‘public order’ as the alleged misuse will not cease to exist after the proscription period of one month.
Bilal Ahmad Bhat through his counsel Syed Musaib said that freedom of speech and expression has now been accepted as a natural right which a human being acquires on birth.
“It is, therefore, regarded as a basic human right. The words ‘freedom of speech and expression’ appearing in Article 19 (1) (a) of the Constitution of India have been construed by the Supreme Court to include freedom to circulate one’s view by word of mouth or in writing or through audio-visual instrumentalities,” he said, insisting that the government order casts a very wide net by saying “any message” that is disseminated over the proscribed social networking sites is included within its reach.
“The order does not refer to what the content of information can be. In fact, it refers only to the medium through which such information is disseminated. No distinction is made between mere discussion and advocacy.”
He said that mere criticism of the government and its policies cannot form a reasonable ground for the respondent to proscribe access to certain part of the internet.