Srinagar: The Jammu and Kashmir High Court on Monday sought the state government’s objections to a couple of petitions challenging its 26 April order banning 22 social networking sites in Kashmir for one month.
A single bench of Justice Ramalingam Sudhakar while seeking objections by May 16 however declined to stay the order.
The directions by the court followed submissions by the counsel for the petitioners Raja Faisal Malik of Malikpora, Anantnag, and Bilal Ahmad Bhat of Shivpora, Srinagar,besides Additional Advocate General B A Dar.
Advocate Salih Pirzada, representing Malik, questioned 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,” Pirzada said.
The social networking sites banned 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’,” Salih 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.
Salih 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, Salih 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.
“Moreover, if such power to block access to social media websites is allowed in absence of procedural safeguards, in an unbridled fashion, the same would lead to arbitrariness. The failure of the government to fix accountability on inimical elements misusing the social networking websites cannot give unrestricted powers to the state condemning the people en masse,” he said, insisting that the order was “unreasonable and a retrograde step” in the era of civilisation revolutionised by the concept of globalization, and urged the court to quash the order.
Advocate Syed Musaib, representing another petitioner, Bilal Ahmad Bhat, 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.
In this regard, Musaib referred to the observations of Justice Jackson (in American Communications Association v. Douds, 94 L. Ed. 9250): “Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored.”
Musaib 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.
AAG B A Dar said that since a caveat has already been filed by the government, it should be given time to file objection to pleas.