Kashmir lockdown: Supreme Court says access to the internet is a fundamental right, but with riders

Minutes before the Supreme Court announced its verdict on the constitutionality of the internet shutdown in Kashmir, there was a palpable excitement in the air. Lawyers, media persons, court staff and law interns all jostled for space near the front of the court. 

One journalist with a prominent news channel momentarily panicked as she, ironically, had a spotty internet connection. This led to mass confusion and, of course, more panic as the other journalists intent on breaking the news checked their own connections. Journalists with certain network providers remained calm because they had internet, and looked on in amusement as the first journalist in question moved around, looking for signal. 

Then two of the three judges comprising the bench entered the courtroom. All movement stopped and a hush fell.

Justice NV Ramana, who was leading the bench, started reading out a summary of the verdict. He was requested to speak into the microphone by senior advocate Vrinda Grover, who is representing Anuradha Bhasin, the executive editor of Kashmir Times. 

Justice Ramana began his order by quoting passages from A Tale of Two Cities by Charles Dickens. This observation was a pointed reference to the two different scenarios portrayed by the Centre and the petitioners over the effect of the internet shutdown in the valley.

Before delving into the constitutionality of the curbs, or whether internet is a fundamental right, the court proclaimed, “Although cherished in our heart as a ‘Paradise on Earth’, the history of this beautiful land (Jammu and Kashmir) is etched with violence and militancy. While the mountains of Himalayas spell tranquillity, yet blood is shed every day. In this land of inherent contradictions, these petitions add to the list, wherein two sides have shown two different pictures which are diametrically opposite and factually irreconcilable.”  

The Supreme Court asserted it would “not delve into the political propriety of the decision taken herein, which is best left for democratic forces to act on”. It said its “limited scope is 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”.

Just as the Kerala High Court outright ruled that access to internet is a fundamental right, the Supreme Court fell just short of it, but said using the internet is “constitutionally protected”. 

It said the right to “freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected.”

The court also passed a slew of directions directing a review of all orders suspending the internet in the valley. “The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed,” the court ruled.

The apex court reminded the State that “power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.”

“Repetitive orders under Section 144, Cr.P.C. would be an abuse of power,” the court said. 

In its conclusion, it noted: “The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.”

Internet shutdown cannot be indefinite

An order suspending internet services indefinitely is impermissible. The suspension can be utilised for temporary duration only, the Supreme Court ruled. The top court’s ruling comes more than 150 days, or five months, after the Centre snapped the internet, voice-calling facilities and landlines in the valley state on August 4, a day before it revoked the special status of Jammu and Kashmir and bifurcated the state in two Union Territories.

The petitioners, which included journalists and other civil rights activists, had challenged this communication blockade.

The top court reiterated that the complete broad suspension of telecom services, whether the Internet or otherwise, is a drastic measure. Therefore, it must be considered by the state only if “necessary” and “unavoidable”.

In a political scenario, where the incumbent government has often used internet shutdowns as a means to control law and order, the verdict today is an important barometer to assess the constitutional validity of snapping internet services.

According to the international advocacy rights group Access Now, which tracks internet suspensions globally, the internet shutdown in Kashmir is the longest ever such imposition in any democracy. Only China and Myanmar (Burma) have imposed longer shutdowns.  

In light of this, the court directed the Centre “to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum.”

It added that “any order suspending internet issued under the Suspension Rules must adhere to the principle of proportionality and must not extend beyond necessary duration and would be liable for judicial review”.

The court noted that the existing Suspension Rules “neither provide for a periodic review nor a time limitation for an order issued”. Till this gap is filled, “the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).” 

It added: “We direct the respondent State/competent authorities to review all orders suspending internet services forthwith.”

Internet is fundamental

Without going into the “political propriety” of the decisions, the Supreme Court rebuked the Centre for its actions and directed it to “review all orders suspending internet services forthwith” .This means that even though the verdict upheld all the constitutional values and ethos of free speech, the internet shutdown in Kashmir may not be immediately revoked.

The court ruled that if the internet was to be suspended, “public emergency” or “in the interest of public safety” was a prerequisite.

The Supreme Court directed the authorities to “consider forthwith allowing government websites, localised/limited e-banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.”

It observed: “Law and technology seldom mix like oil and water. There is a consistent criticism that the development of technology is not met by equivalent movement in the law. In this context, we need to note that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society.

“In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet.”

Freedom of speech, but with riders

Justice Ramana, who penned the 130-page judgement, said: “Suspension of free movement, internet and basic freedoms cannot be an arbitrary exercise of power. Mere expression of dissent or disagreement against a government decision cannot be reason for Internet suspension…Complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, which must be considered by the State only if ‘necessary’ and ‘unavoidable’.”

The top court’s observation brought smiles to the faces of the advocates representing the petitioners who challenged the communication blackout. Silent congratulations were passed among the lawyers even as Justice Ramana read out his summary of the verdict.

However, the court also acknowledged that the Centre could impose curbs if necessary. “Liberty and security have always been at loggerheads. The question before us, simply put, is what do we need more, liberty or security?”

It ruled: “It goes without saying that the government is entitled to restrict the freedom of speech and expression guaranteed under Article 19(1)(a) if the need be so, in compliance with the requirements under Article 19(2).

“It is in this context, while the nation is facing such adversity, an abrasive statement with imminent threat may be restricted, if the same impinges upon sovereignty and integrity of India. The question is one of extent rather than the existence of the power to restrict.

“We may summarise the requirements of the doctrine of proportionality which must be followed by the authorities before passing any order intending on restricting fundamental rights of individuals.” 

No chilling effect because of lockdown

Though the communications blockade needed urgent review, the Supreme Court observed that Bhasin failed to prove her assertion that it had a “chilling effect”. Since no “evidence was put forth” it would be “impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self­-serving purpose”.

The court also noted that although certain restrictions were allegedly removed on September 27, 2019, “the present exercise” was thus rendered “into a virtually academic one”. It added that the court could not “ignore non­compliance of law by the state” since the present case was “not just about the past or what has happened in the erstwhile State of Jammu and Kashmir, but also about the future, where this court has to caution the government”.

On allegations that the media faced undue restrictions in the valley and their freedom of speech was curbed, the Supreme Court said in view of the fact that Kashmir Times has now resumed publication, it did not “deem it fit to indulge more in the issue than to state that the responsible governments are required to respect the freedom of the press at all times.”

The verdict read: “Journalists are to be accommodated in reporting and there is no justification in allowing a sword of Damocles to hang over the press indefinitely.” 

Curbs under curfew imposed

“As emergency does not shield the actions of government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always,” Justice Ramana observed. “In this context, it is sufficient to note that the power under Section 144, Cr.P.C. cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights.”

He continued: “Our Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144, Cr.P.C. unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger.

“We may note that orders passed under Section 144, Cr.P.C. have direct consequences upon the fundamental rights of the public in general. Such a power, if used in a casual and cavalier manner, would result in severe illegality. This power should be used responsibly, only as a measure to preserve law and order.”

The Supreme Court clarified that “law and order”, “public order”, and “security of state” are distinct legal standards and the magistrate must tailor the restrictions depending on the nature of the situation. “The magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstance; the restriction must be proportionate to the concern.”

The court further clarified that “as a general principle, on a challenge being made regarding the curtailment of fundamental rights as a result of any order passed or action taken by the state which is not easily available”, the state must take a “proactive approach in ensuring that all the relevant orders are placed before the court”. However, it could claim privilege if “there is some specific ground of privilege or countervailing public interest to be balanced, which must be specifically claimed by the state on affidavit”.  

“In such cases, the court could determine whether, in the facts and circumstances, the privilege or public interest claim of the state overrides the interests of the petitioner. Such portion of the order can be redacted or such material can be claimed as privileged, if the state justifies such redaction on the grounds, as allowed under the law.”

Curbing media, muzzles the voice of the people

After today’s verdict, Bhasin said the Supreme Court has taken too long to decide the matter, considering fundamental rights were involved. “Even now, there is no immediate relief,” she said. However, she applauded “the significant principles that were laid down” today since it would “have an impact on future cases as well”.   

“In principle, the orders are good since it holds the state accountable. But how this is going to be implemented is another question altogether,” she added. Bhasin hoped the state would take into account the spirit of the verdict and not circumvent it in any way.

Bhasin said one cannot “wish away the people’s suffering” of the past months. “When we talk about the role of the media in society, we need to take into account the work it does,” she said. “There is very little known in what was happening in Kashmir. Even local media, there was not much reported about how Kashmir has been hit. The impact of the restrictions on medical services, the educational services and the psychological impact of the State’s decision on the people. The media also reports on the state of the economy and the achievement or the failures of the government.” 

She added: “By muzzling the press, one is actually curbing the voice of a society it represents.”

Bhasin said it would be an uphill task to revive the media industry. “Newspapers were not being published in the past five months,” she pointed out. “For quite some time, newspapers were being published like pamphlets with no information other than government handouts. The freedom to operate was missing partly because of the atmosphere and partly due to communication curbs since it gave limited connectivity to the media. Even though reporters had access to a state-operated media centre, the entire media felt as though their work was under surveillance. The reporters felt that they were unable to operate and write freely.”

She said, “Economic loss aside, it will take a long time for the media to bounce back to the vibrancy with which it once operated.”