Sovereignty overrides free speech in Kashmir
ANI Photo

When freedom of speech endangers state sovereignty, what should be extinguished? If we accept that the guarantee of free speech can only be ensured by a secure state, this means that security of Jammu, Kashmir and Ladakh justifies the total blackout of the media in these frontier states. This is why the 73rd Independence Day passed off peacefully in Lal Chowk. For the cacophony of Kashmir seceding from India with destruction of Indian sovereignty may masquerade as free speech.

Kashmiris will definitely disagree with suppression of their right to even wish their loved ones Eid Mubarak – but the fact that irate Kashmiris can gather in Srinagar only when mobile messaging is allowed, threatens state security. More so, after Article 370 was repealed and Jammu, Kashmir and Ladakh integrated into India without a separate flag—for the very first time since independence. Never mind Aksai Chin. Right from 1689, freedom of speech and association has been recognized. Article 19 of the Universal Declaration of Human Rights, adopted in 1948, states that: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

Freedom of expression, is recognized throughout the world. This right is enshrined in Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples' Rights. But in Jammu and Kashmir, this right has been conspicuously curtailed. It is a right exercised by media barons and alleged rapist MLAs like Kuldeep Singh Sengar. Those who are raped and killed like the eight-year-old girl in Kathua from the Bakharwal community are unaware of free speech.

For those who came in late, the right to freedom of speech and a free media can definitely be curtailed when state security or sovereignty and integrity of India is threatened. Both these grounds are woven into article 19(2) which makes enjoyment of free speech a luxury and not always a fundamental right throughout the rest of India. Beef-eaters and Maoist sympathizers know that very well. As do Christian proselytizers and those like Sonia Gandhi who oppose withdrawal of article 370 in Kashmir.

The issue of the right to move around freely or exchange greetings in Kashmir on Eid came to the fore when Twitter was served with a notice for putting out fake messages from a handler in Pakistan. Internet, mobile and landline services have been blocked in Kashmir so Kashmiris living in Delhi could not phone their family to wish them Eid Mubarak. It appears draconian with complaints galore in the past that some Kashmiri women were raped or a few Kashmiri men like the terrorist Burhan Wani were shot dead.

But that is the price one has to pay for a united and sovereign India if we do not want to go the way of the former Soviet Union which was balkanized because of Mikhail Gorbachev’s glasnost and perestroika (openness and restructuring) in 1989 while China’s Deng Xiaoping butchered thousands of Chinese in Tiananmen Square the same year for protesting. Unlike India, state hegemony supplants free speech in China which threatens state security and sovereignty. But this is reversed when it comes to Kashmir, with China trying to grab 37,244 square kilometers of Aksai Chin, Depsang Plains and trans-Karakoram from India. China exercises its freedom of speech through Pakistan which flew its flag at half-mast and directed its servile media to telecast imaginary Indian violations of Kashmiris’ human rights on Thursday. Unfortunately, India continues to ingratiate itself with China which is the hidden enemy behind Pakistan.

So, the Hobson’s choice of state sovereignty versus free speech in Kashmir makes Indians patriots or traitors as a news anchor of our republic forever proclaims. The Modi government’s curbs on mobiles, internet and free speech in Kashmir have been challenged in the Supreme Court by a journalist and activist from Kashmir. But the court will only have to see if the curbs go beyond the eight heads imposed by article 19(2) which are not justiciable. And so, whether the Supreme Court will grant relief to the Kashmiris remains to be seen. Its strength has been raised to 34 judges (including the CJI) imposing an extra burden of Rs 6,81,54,528 on the Consolidated Fund of India with 58,669 cases pending as on June 1, 2019. CJI Ranjan Gogoi has lamented that he could not form a five-judge Constitution bench without breaking up the two-judge benches of the other courts and delaying hearing of vital cases. CJI Gogoi allegedly suppressed the free speech of a hapless woman employee – which proves we still enjoy a free media.

Of course, this question of state sovereignty versus free speech may not force CJI Gogoi to set up a five-judge bench to decide the vexed issue because even a two-judge bench will proclaim in convoluted juristic terminology that sovereignty of India overrides free speech. In India, free speech was never as important as food, education, clothing and shelter. Free speech was exercised by politicians and media barons while the humble reporter reported what he was told to report.

What is beyond doubt is when the economy is sluggish, jobs are scarce, religious bigotry goes hand-in-hand with suppression of secessionism masquerading as freedom of speech. Liberals are branded as traitors – which perhaps they have always been when they argue if Kashmir is an integral part of India. If it is, we do not need a separate flag, separate laws and separate citizenship. That is true freedom.

The writer holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.

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