SC has not lived up to its own principles at J&K – analysis
In January, the Supreme Court (SC) delivered an important, but incomplete, ruling in Anuradha Bhasin vs Union of India, a case related to the restoration of Internet services in Jammu and Kashmir (J&K). He argued that the right of access to information through the Internet was a fundamental right protected by the Constitution, that orders prohibiting Internet services must be made public, that they must be provided (that is, restricting the Internet should be the “alternative less restrictive “available to the government), which must be temporary and periodically reviewed. However, the Court did not actually examine the Internet ban in Kashmir on the basis of these principles. Instead, he left that determination to the government.
However, and perhaps driven by the principles set forth in the SC trial, the government took some steps toward partial restoration. By March 2020, 2G Internet was available. At that point, however, the coronavirus disease pandemic (Covid-19) reached the Indian shores, and a national shutdown was announced to contain the spread of the virus. The effects of the blockade made it even more clear how indispensable the functioning of the Internet is to modern life. For example, two of the most crucial spheres for a dignified human existence: education and health, now had to be accessed through digital means.
In response to this, the Foundation for Media Professionals (FMP) filed a new petition at SC, arguing that in light of the situation created by Covid-19, 4G Internet had to be restored at J&K. The government contested the request, claiming that 4G internet restrictions were required to prevent the spread of inflammatory videos and photos across the border. FMP responded by noting, first, that there was no evidence to show a connection between restricting the Internet and suppressing the spread of propaganda. In fact, the available evidence showed otherwise: Effective Internet enabled the government to counter propaganda with such speed and efficiency. Second, there were a number of other less restrictive alternatives open to the government, such as blocking specific websites or temporarily restricting the Internet in specific areas where there are credible threats of an attack, which were not resorted to. Most importantly, it was noted that restricting the Internet throughout J&K, where millions of people lived, during a pandemic involved effectively punishing an entire population in response to the possibility of cross-border propaganda.
SC then issued its ruling in the Internet 4G case. As in the case of Anuradha Bhasin, he established some important principles: He reiterated that Internet restrictions, even when necessary, had to be localized and temporary. He said the principle of proportionality should be respected, with its focus on less restrictive alternatives. Unfortunately, however, even after saying all this, SC once again refused to assess the restrictions on the touchstone of constitutional norms. Instead, it formed another committee to review the restrictions. But this committee was created under the auspices of the Ministry of the Interior (MHA), which was the body responsible for imposing the restrictions in the first place.
SC justified this decision by noting that in “ordinary times” the petitioners’ arguments would have had to be seriously considered, but that due to the threat of terrorism in Kashmir, special considerations should apply. This reasoning, however, is problematic. What it effectively means, even though SC did not explain it, is that at any time, the people of J&K do not have the same rights and freedoms that the Constitution grants to Indian citizens elsewhere. In other words, it is cross-border terrorism and the actions of Pakistan that determine the rights of the people of J&K, and not the Constitution, although only recently, and with great fanfare, the Constitution had “extended” to J&K after the repeal of Article 370 remains in effect. And most disappointingly, SC continued to refuse to commit to the basic arguments that the Internet is an essential condition of human life that states cannot cut off at will, and that in any case, restricting the Internet does not have tangible impact on terrorism (the history of Kashmir – and the events after the effective repeal of Article 370 – will attest to this fact).
As stated by several people elsewhere, the continued treatment of Kashmir as a “special case” in which a lower threshold of rights is justified undermines the constitutional vision of equal protection and equal treatment. It is now to be expected that when the MHA committee considers the matter, the principles set forth by SC in its two trials will be taken seriously, and 4G Internet will be quickly restored.
Gautam Bhatia is an advocate based in Delhi.
The opinions expressed are personal.