“To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.” - Frederick Douglass
Jammu & Kashmir is the most disputed land in India. The longest shutdown that has ever been known to mankind has been experienced in Jammu & Kashmir. If we talk numbers then also the numbers are surprisingly high. Out of 106 internet shutdowns in India, 55 are imposed in Kashmir alone. The recent internet shutdown which has been imposed in the Kashmir valley was imposed on 4th August, hours before the Central government abrogated the erstwhile special status and bifurcated it into two Union territories.
The government has cited safety and security reasons for the internet shut. The learned Solicitor General on behalf of the state submitted that the first and foremost duty of the State is to ensure security and protect the citizens their lives, limbs, and property. Internet and various social media platforms can be used to incite violence as modern terrorism heavily relies on the internet.
As a result of this prolonged internet shutdown, people are suffering the most as it cost them their jobs and livelihood. Students who are preparing for competitive exams as most material is not supplied online and businessmen are the worse sufferers. "Almost every paperwork related to business is now to be done online. Although the government has set up facilitation centres in various places, these are not enough. For example, I have to shut my shop for a day to be able to give GST returns. It is not only cumbersome but humiliating as well, said Farooq Ahmad Khan, a businessman.
This action of the government invited many petitions praying for reviewing the actions of the State as it gives unlimited power to the State and breaches the fundamental rights guaranteed by the Constitution. Supreme Court heard the petitions challenging the internet shutdown and movement restriction. And finally, it delivered its judgment in the case of Anuradha Bhasin v. Union of India.
Supreme court stated in its judgment very clearly that in the land of inherent contradictions its job is to “to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner” and leave the orders at issue for “democratic forces to act on.” Court heard both sides and identified the following contentions.
“Whether the Government can claim exemption from producing all the orders passed under Section 144, Cr.P.C. and other orders under the Suspension Rules?
Whether the freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade, or business over the Internet is a part of the fundamental rights under Part III of the Constitution?
Whether the Government’s action of prohibiting internet access is valid?
Whether the imposition of restrictions under Section 144, Cr.P.C. were valid?
Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?”
After listening to the arguments of both the sides it gave its verdict on 10th January 2020 with the findings that:
The Constitution of India protects the Freedom of expression and to practice any profession online
The government can exercise the right to suspend the internet but with certain limits. In this case, these limits were ignored and therefore the government was asked to review its orders and lift those that did not have a temporal limit.
The court asked the government to review its order under Section 144 of CrPC and the power under this section should be control apprehended danger and not suppress the legitimate expression of views.
This recent judgment passed by the Supreme Court has spurred up the debate on the element of administrative autonomy. “The judicial ruling of Supreme Court on 10th January 2020 on the ongoing communication blockade in the Kashmir Valley falls short of expectations.” This Court, vide judgment gave certain directions regarding the imposition of restrictions on the internet in a proportionate manner. The aforesaid case had, in addition to the procedural rules, supplemented the requirements of having timely review and the non-permanence of internet shutdown orders. But this order provides little relief to the people who have to travel miles to access the internet for a few minutes. “Performing the most basic tasks, from filing Goods and Services Tax returns and submitting license applications and scholarship forms to checking examination results, has required many of them to undertake this journey. And many have to go back home disappointed because of huge lines. Therefore, the judgment holds no meaningful relief for the people.”
It does not hold the shutdown illegal: While recognizing that an endless obstructing of the Internet will abuse the law, the Court despite everything doesn't hold the shutdown unlawful. The main thing that is included by the request is the compound of perplexity. Perplexity as to why the judgment which strongly condemns arbitrary use of the power given to the government to restrict a citizen’s access to the internet, it has no answer for why the bench including esteemed Justice N.V. Ramana, R. Subhash Reddy and B.R. Gavai who delivered a 130- page long judgment, has not held the restrictions to be unreasonable and strike them down.
It was made very clear by the bench that under the rules laid down by the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017, suspending internet services indefinitely is impermissible and that the restrictions can only be levied only for a temporary time period.
“Any order suspending [the] internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration,” the bench held.
“The bench pointed out the lacking in the existing suspension rules as it neither provides for a periodic review nor a time limitation for an order issued under it, the bench directed the competent authorities to review its order within seven working days as a requirement under Rule 2(6).”
But the problem here is that what if the reviewing committee keeps on suspending internet services thus making a mockery of the term “temporary”. This bench seems to have no answer other than saying that these orders are subject to judicial review. But what if this option of judicial review takes a lot of time and the government till then can get away with this by presenting these unreasonable restrictions as fait accompli, while the citizens are the worst hit by these unreasonable restrictions.
In one of the paragraphs of the judgment, courts hinted at the fact that internet services might not be restored with immediate effect. It says:
“In any case, the state/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e-banking facilities, hospital services, and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.”
The petitioners asked for the setting aside or quashing of all orders. It was submitted that the inhabitants of Union Territory of Jammu and Kashmir are facing severe restrictions since August 2019 and have been caged. The Respondent has imposed restrictions that hamper the right to live with dignity and with all the freedoms which are guaranteed by the Constitution of India. The rights of citizens cannot be curtailed in perpetuity.
As we read the judgment, we find that it lacks the operative part and is only the substantive discussion of the issue raised.
The Latin maxim, Ubi Jus Ibi Remedium — where there is a right there is a remedy supports Article 32 of the Constitution, which ensures freedom to move the Supreme Court when an essential right is abused. Here, the Court found that an incessant shutdown of the web would be unlawful, yet it despite everything neglected to give any bearings suppress the barricade.
Ball in the executive’s court again:
“The Court relegated the review back to the realm of the executive, by directing a committee constituted under the Suspension Rules to periodically examine the orders blocking access to the Internet.”
The court has laid down procedural safeguards and abstract principles and left it decision making power in the hands of the executive again. While there is no determination about the communication shutdown and movement restriction from 5th August 2019 to 10th January 2020 the bench has left it in the hands of the executive to decide the proportionality of continuing the shutdown. Also, the executive is asked to tentatively review it order thus there is no relief for the people who suffered 158 of the shutdowns. The Court's refusal to review the 158-day long communication shutdown has left Kashmiris who have endured mental misery and money related misfortunes running into a great many crores with no help or cure.
SETTING UP A WRONG PRECEDENT
The court has set up a problematic point of reference by holding that reasonable limitation laid under Article 19(2) can even stretch out up to finish prohibition in certain conditions. It could subvert future legal challenges to the Telecom Suspension Rules on the ground of internet shutdowns being naturally unpredictable and overbroad. The judgment in the aforesaid case sets out a sound lawful premise to challenge any future correspondence shutdown in our nation however it holds no significant alleviation for the individuals who have languished in Kashmir over the most recent 158 days. “Most importantly, the judgment is only the first step and it will require continuous monitoring and follow up action to ensure the government complies with the progressive principles and procedural safeguards laid down by the Supreme Court.”
All in all, the judgment lays down progressive principles and puts in place procedural safeguards but it is now up to us to ensure the government complies with the Supreme Court’s decision in their true spirit. Dodged follow up action is required to ensure fundamental rights are not reduced to parchment barriers and to turn abstract principles into a concrete reality.
“The Supreme Court has laid down the jurisprudence in the present matter and has provided for a balance to be achieved between individual liberties and national security concerns.” It is also important to note that the court has provided the right to free speech and expression using the medium of right to the internet but not for the right to the internet itself. This thing gives rise to a paradoxical situation in which the former is dependent on the latter. The positive aspect of the judgment is that it made a step forward in removing the veil of secrecy but at the same time failed to relieve the misery of Kashmiri people. After all, a good judgment imbibes in itself the quality of “IMPLEMENTATION” which was completely missing and ignored in this case. Therefore, the need for reasoned orders based on reasonableness and proportionality could help in achieving a balanced and rational judgment. However, the court has ruled out that the freedom of speech and expression over the internet is a fundamental right so in the future the court might hold that the right to use the internet is also a fundamental right. Because in the era of global village denying internet is a severe blow to the rights of the individual in terms of opportunities, information and many more Moreover, The United Nations General Assembly (UNGA), in a resolution in 2016 and according to Article 19 of Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and political rights (ICCPR) also maintained that the rights which people have offline must be protected online also, especially the freedom of expression. The Charter of the Human Rights and the Principles of internet, prepared by the internet governance forum of the united nations, also outlined the right to access, and make use of, the internet as a fundamental right. The Hon'ble court ruled that section 144 can be imposed in the apprehension of danger but that power can certainly be misused to a great extent by the government so certain actions must be ensured this thing. In a nutshell, the importance of the internet in people’s lives cannot be downplayed & the following observation of the apex court should be given utmost attention- “Law should imbibe the technological development and accordingly mould its rules to cater to the needs of society. Non-recognition of technology within the sphere of law is only a disservice to the inevitable.”
Madeeha Majid, ‘ The right to internet as the right to health obligations to remove barriers to the access to the information during a pandemic’, (Leiden law) <http://leidenlawblog.nl/articles/the-right-to-internet-as-the-right-to-health-obligations-to-remove-barriers-to-the-access-of-information-during-a- pandemic>
Mitushi Garg, ‘The right to internet: A Persistent Conundrum,’ (Indian law Journal) <https://www.indialawjournal.org/the-right-to-the-internet-a-persistent-conundrum.php>
SC's Kashmir communication shutdown judgement is just the beginning of a long u phill campaign,’ (Internet freedom Foundation, 10 January 2020) https://internetfreedom.in/scs-judgement-on-kashmir-communication-is-just-the-beginning/
‘Why the SC Judgement on Kashmir internet shutdown why it falls short of expectations’ (The Wire, 10 January 2020) https://thewire.in/law/sc-judgment-kashmir-internet-shutdown-why-it-falls-short-of-expectations
‘Fundamental Right: All you need to know about the longest shutdown in Kashmir’, (Outlook Web Bureau, 10 January 2020) https://www.outlookindia.com/website/story/india-news-sc-says-internet-fundamental-right-all-you-need-to-know-about-kashmirs-longest-internet-shutdown/345478