SC opens the door in Kashmir – publishers
In a long-awaited ruling, the Supreme Court (SC) has finally ruled on the constitutionality of restrictions in place in Jammu and Kashmir since August. The court’s order is laudable in principle. It has made clear that freedom of expression through the Internet and the freedom to practice any profession, which depends on the Internet, encompass freedom of access to the Internet, which makes it a fundamental right (by extension). This is based on a judgment of the High Court of Kerala which declared the right to the Internet a fundamental right. This is particularly important as India has seen the longest Internet blackout in any democracy in the world. The court has also asked the Center to file orders—which it was not willing to do—to justify the use of Section 144 and other restrictions, and said they are subject to judicial review. It added that these restrictions on rights cannot be indefinite. It has called for the immediate resumption of essential services such as hospitals, government websites and banking. And it has asked the competent authority to review other restrictions within seven days.
This will cause a sigh of relief from the residents of the Valley, as well as strengthen the fundamental architecture of civil liberties in India by establishing a strong precedence in jurisprudence on what the executive can and cannot do, even when looking to strengthen security. With your order, the apex court has opened the door for the restoration of normalcy in Kashmir. At a larger level, the rule sets precedents that make the Internet shutdown process more transparent, ensures that there can be no indefinite closures, and actually specifies a time limit for a review (seven days).
But there are two concerns that deserve attention. The first is time. It has taken the apex court more than five months to establish these principles. Civil liberties must be of the highest priority, and this reflects a degree of abdication of responsibility, since throughout this period, Indian citizens have had to live with reduced rights. Nor does the SC ruling provide immediate relief. Leave the door open for the executive to psay that these orders are justified for security reasons and by another, perhaps protracted, legal process for the full resumption of rights. The SC should have built on its own principles to provide for the immediate restoration of rights. But the good news is that by opening the door to freedom, it has strengthened democracy.