(Vipasha Verma and Swikruti Mohanty are Second year students at National Law University Odisha)
Illustrated Painting – “Still Life” by Francisco de Zurbaran
It’s been more than a year since the abrogation of Article 370 and the imposition of internet shutdown on the territory of Jammu & Kashmir. While the J&K government is infamous for invoking such orders given the frequent militant activities and cross-border terrorism it has to endure, this particular shutdown has been the longest one by far even superseding the 133 days shutdown following the death of Hizbul Mujahideen militant, Burhan Wani.
Although the administration continues to ensure that the ban hasn’t posed any challenges in the functioning capacity of Jammu and Kashmir, statements from ground reports present a different situation. Iqbal Saleem, a professor of surgery, wrote, “This is so frustrating. Trying to download the guidelines for intensive care management…24 MBs and one hour. Still not able to do so.”
Further, web limitations since August 2019 have restricted choices for far off and virtual learning in Kashmiri, consequently affecting the privilege of instruction. The restriction on the fast web additionally makes it hard for some in Jammu & Kashmir to telecommute and satisfy their entitlement to business and a satisfactory way of life, adding to the monetary expense of an effectively problematic pandemic.
While the government claims that the blanket ban is a necessity for security concerns, legal analysts argue that it is an abuse of power and an overreach that jeopardizes the constitutional freedoms of the people of Jammu and Kashmir. This article tries to analyze the popular challenge in the Supreme Court for the restoration of 4G internet services, and how the judiciary dealt with the inaction of the central government and the ensuing petitions.
VAGUE VERDICTS: ANURADHA BHASIN v. UNION OF INDIA
This longest internet shutdown was first constitutionally challenged in Anuradha Bhasin v Union of India. In this case, the executive director of the ‘Kashmir Times’ newspaper was the petitioner. She had contended that due to the internet and telecom suspension after the revocation of Article 370, her paper could not be distributed for a week. The Central Government failed to produce the orders of suspension for halting internet services under Telecom Suspension Rules and Section 144 of The Code of Criminal Procedure. The justification given was to prevent the spread of fake news in the fear that it would fuel internal terrorism in Jammu & Kashmir.
It was held by the Court that the right to use the internet as a medium for free speech and expression and trade commerce was protected under Article 19(1)(a) of the Constitution of India. Further, the Court noted that restriction of such rights could only be accorded under the provisions of Article 19(2) or if the statements made posed a threat to the integrity and sovereignty of India.
The ‘imminent lawless action’ test, which has been exercised in the present case, became the law of the land after the Supreme Court of India applied it in the cases of Sri Indra Das and Arup Bhuyan. It’s imperative to note that this test was implemented after evaluating a series of tests such as the ‘clear and present danger’ and the ‘bad tendency’ test, which were either inconsistently followed or felt to be too vague to adjudge cases of free speech.
In this case, the State was required to satisfy its burden under the test by exhibiting material evidence to demonstrate a direct nexus between terrorism and internet usage. The State could not offer concrete proof. However, even if the State would’ve been able to produce such evidence, it would still fail to meet the constitutional test of proportionality. In the case of Modern Dental College, it was held by the Court that ‘reasonable restrictions’ on free speech under Article 19 hold the principle of proportionality. Similarly, in the case of K.S. Puttaswamy v. Union of India, the Court emboldened this stance and held that reasonable restrictions must meet the test of proportionality.
The Court laid down a four-pronged proportionality test. It stated, “a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.”
It’s argued that this test is not met by internet shutdowns because they disproportionally target people, since all people and not just criminals are barred from the access of the internet. Further, the behaviour of shutting down access, which includes cutting people from the entire web and not just its legitimate uses are overreaching preventive measures. While the Supreme Court ordered the government to white-list websites, it still fails to meet the proportionality test because a lesser restrictive alternative exists, i.e., black-listing of websites.
The burden is on the State to use the least restrictive measure, especially since the government has demonstrated that it has the intellectual and technological capability to isolate people of interest by tracking them on their registered phones.
Contrarily, it’s important to acknowledge the lauded Kerala High Court judgment in the Faheema Shirin case, in which the right to access to the internet was recognised as part of the right to education and the right to privacy under Article 21 of The Constitution of India. It was also held that an instruction or rule which damages the right to access to internet, a tool that ensures the right to education and also is a fundamental freedom, cannot be allowed to hold foundation.
The Supreme Court could have used this judgment as a guiding light while disposing of the Anuradha Bhasin petitions, it is argued that the Supreme Court acted rather cautiously as it considered the trend of internet clampdowns and its effect on the fundamental rights of citizens.
DODGEBALL: SUPREME COURT & THE SPECIAL COMMITTEE
The Anuradha Bhasin verdict led to the white-listing of websites and restriction of the internet speed to 2G by the government. However, later into the year, when the global education and healthcare system shifted online, the people of Jammu and Kashmir have and are facing insurmountable disruptions in these sectors. Petitions by Foundation for Media Professionals (FMP), Private Schools Association of J&K, and Soyaib Qureshi argued that the restriction of the Internet amidst the pandemic has resulted in a “disproportionate infringement of the right to access the internet.”
While the Supreme Court held that the government’s refusal to lift the 4G ban was justified on the ground of security concerns, it set up a “special committee” consisting of government executives from the Centre and State to “immediately” form an opinion on and decide the necessity of the restrictions. It wasn’t past the petitioners that the order was seen as more of an effort to assuage them rather than adjudge their fundamental concerns.
Although there were reasons to challenge the remedy provided by the Court, the FMP, following the lack of information in the public domain about the functioning of the Special Committee, was forced to file a review petition to ensure the basic compliance of the order. Even more frustrating was the dallying not only continued at the executive’s end but on the judiciary’s part as well. The apex court’s failure to list the case appears to fly in the face of its standard operating procedure on mentioning and listing of urgent cases.
While the bench issued a week’s duration to the government and the J&K administration to respond to the contempt plea, no official notice was issued. This added fuel to the already swarming criticisms that instead of dealing with the case itself, the Court dodged its responsibility to the government effectively giving it the power to review its own decision.
The Supreme Court has in the recent past been lacklustre is hearing crucial cases such as the challenge to The Citizenship Amendment Act, or the abrogation of Article 370 (a case intrinsically related to the internet shutdown in Kashmir) and follow a “Not Now” policy. However, it seems like this time it decided to take a slightly different approach and adapt a “Not Us” policy by passing the baton to the executive.
Eventually, in the face of the contempt petition, the Special Committee decided to convene a few days after the one-year anniversary of the suspension of internet services. It pronounced the restoration of 4G internet services in Jammu and Kashmir and access to high-speed internet on a “trial basis in a calibrated manner in specified limited areas to assess the impact on the security situation” after August 15. Following which 4G internet was restored in two districts – Ganderbal and Udhampur – on 16th August.
However, this immensely delayed decision still raises certain doubts and an elongated feeling of alienation in the people of Jammu and Kashmir. The “trial basis” order lengthens out an issue that requires immediate action rather than an experiment. While these two districts are being assessed on their “security situation”, the people in all other areas of the territory continue to live in a shroud of darkness, especially in a time that has increased challenges for people all around the world. The judiciary – once a beacon of hope – has dismissed genuine issues and ducked out of the way, thus leaving the people with not much choice but continuing to rue for a day of full freedom.
A POLICY FOR INTERNET SHUTDOWNS
In India, internet shutdowns are rapidly increasing. From three in 2012 to thirty-one in 2016 to a record of more than a hundred in 2018. A study by Brookings Institution states that the country lost $2.4 billion because of internet shutdowns. However, a more fundamental question that has been raised is whether a democratic government has the right to impose such a shutdown?
While the Supreme Court keeps justifying such obscene misuse of power on the ground of security, there must evolve a discussion towards a solution in reforming our law enforcement to ensure that it keeps pace with the changing technologies. India needs a legal framework that guarantees that a government shuts the internet down in the rarest cases, and does not panic implement it as a first response.
Safeguards must be instituted that create a system of checks and balances. A system that requires the government to go through a tougher set of rules and procedures, only allowing it to implement a shutdown through petitions, permissions, and reviews from different authorities. This ensures that such extreme steps are taken in grave emergencies, rather than use such power as an unjustified precautionary measure and compromise our democratic freedoms.
As the world moves towards digitisation, India has been at the forefront as an enthusiastic adopter of innovation, convenience, and gains offered by technology. However, as much as technology is a form of power that enables human liberty, it can also be used to prevent it. Such ongoing changes in our lives must be positive, and rather than wielding it as a sword for limiting freedom, it must be used to serve the constitutional goals of justice, liberty, equality, and fraternity for individuals.
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