Eloquently reticent-Editorial-The Hindu-11-01-2020

Abstract :

The SC verdict on the restrictions has some important takeaways.

Overview :

Following the abrogation of the special status of the erstwhile State of Jammu and Kashmir under Article 370, the government had suspended telecom and Internet services in the valley since August 5th, 2019.
The government claimed that the move was taken amid apprehensions that vested interests might misuse the internet-enabled social media platforms for instigating violence in the valley. The government had cited the extensive reach and impact of the Internet as a medium in order to restrict it. The government had defended its move for a blanket suspension of Internet services in the valley citing the lack of technology to allow selective online access.

Given the importance of the Internet in the present system, the shutdown in the valley has impacted the lives of the people and the economy of the valley. Petitioners Anuradha Bhasin, Kashmir Times editor and senior Congress leader Ghulam Nabi Azad had claimed that the government’s shutdown of Internet and telecom services had cut off Kashmir from the rest of the world.
The move to impose internet suspension in the valley was challenged in the Supreme Court. A three-judge Bench of the Supreme Court, led by Justice N.V. Ramana, has come out with its verdict in the case.

Access to the Internet as a right:

The apex court has upheld the freedom of free speech, expression and trade or business on the Internet as fundamental rights under Article 19(1)(a) of the Constitution and the need for it to be constitutionally protected.

The Court has stated that the right to trade, occupation or commerce dependent on the Internet is a fundamental right under Article 19(1)(g) given that in a globalized Indian economy, right of trade through Internet fostered consumerism and availability of choice.
The court clarified that the right to free speech and expression includes the right to disseminate information.

However, the court verdict has fallen short of exclusively recognizing access to Internet as a fundamental right.

Need for proportionate measures:

The Supreme Court rejected the argument of the government which had cited the lack of technology to allow selective online access as justification for the blanket suspension of Internet services in the valley.
The Court while acknowledging the government’s argument that Internet could be used to propagate terrorism in J&K and thus challenge the sovereignty and integrity of the nation has stated that peace in J&K should be achieved without excessively burdening the fundamental right of free speech and has called for proportionate measures.

The court has held that a restriction imposed on fundamental rights without appropriate justification was disproportionate. The degree and scope of a restriction should be proportionate to the intended objectives and necessity for such a measure.

The court has noted that the State should resort to the least restrictive measure while taking into consideration the facts and circumstances.

The court cautions against the excessive use of the proportionality doctrine by the state in matters of national security.

Government to review orders:

The Supreme Court ordered the government to immediately review any existing orders suspending Internet services in the erstwhile State of Jammu and Kashmir. The court has stated that any such order, found to violate the law should be revoked at once.

The government has been asked to consider restoring government websites, localized/limited e-banking facilities, hospital services and other essential services in areas in the Union Territory, given the lesser potential for its misuse.

Government to publish orders:

The Supreme Court has made it mandatory for the government to publish each of its orders that sought to restrict some of the fundamental freedoms of the people in the valley, including the suspension of telecom and Internet services.

The court has significantly upheld the principle that there can be no ‘secret orders’. The government is bound to publish all orders it passes regarding such restrictions so that they can be challenged in the court of law.

Publication of these orders would now enable the affected persons to challenge their legality in the Jammu and Kashmir High Court or before any other appropriate forum.
The court has held that any restriction imposed by the state should be supported by sufficient material and is amenable to judicial review.

Temporary Suspension of Telecom Services Rules, 2017:

The court has held that suspending Internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services [Public Emergency or Public Service] Rules, 2017.
A complete suspension of telecom and Internet services should be resorted to only as the last option in unavoidable situations. The suspension should be for a temporary duration only.

Setting right the lacunae in the 2017 rules:

The court has taken note of the lacunae in the 2017 Rules that the word “temporary” has not been defined, meaning that there was no time-limit prescribed in the rules.
The court observes that this loophole has enabled the government to continue with the suspension of Internet services indefinitely. The court has asked the legislature to correct this lacuna. Till then, any order of Internet suspension under the 2017 rules would be reviewed by the Courts within one week of its issuance.

Misuse of Section 144 of the Criminal Procedure Code:

Referring to the submissions by petitioners that the police were still restricting the movement of people during the day in Jammu and Kashmir, the court has called the state to follow due procedure, taking into consideration the rights of citizens, and pass only appropriate and need-based restrictive orders.
Section 144 of the Criminal Procedure Code (CrPC) of 1973 authorises the state to issue an order to prohibit the assembly of four or more people in an area. According to the law, every member of such ‘unlawful assembly’ can be booked for engaging in rioting.

Section 144 is imposed in urgent cases of nuisance or apprehended danger of some event that has the potential to cause trouble or damage to human life or property. Section 144 of CrPC generally prohibits public gathering.

The court by stating that repetitive orders under Section 144 CrPC were an abuse of power, has held that the government cannot take recourse to Section 144 CrPC as a tool to prevent the legitimate expression of opinion or grievance. Section 144 CrPC should also not be used to prevent the exercise of any legitimate democratic rights.

On the contention, whether Section 144 could be invoked against the public in general or against specific groups or persons, the court referred to the Madhu Limaye judgment that a general order could be passed if the number of persons was so large that a distinction could not be made without risk.

Government to review restrictions on J&K:

The Court has refused to delve into the correctness of the government’s move to abrogate Article 370. The court said it merely sought to balance citizens’ liberty and their security via the verdict.

Failure as a court of Justice:

The court through the verdict has done well in interpreting the law of the land and laying down norms for the exercise of executive power. But, it falls short, by restraining itself from deciding on the validity of curbs imposed in Jammu and Kashmir.
The apex court is duty-bound to enforce the fundamental rights of the citizens. By choosing to only interpret the law and laying down norms for the executive it has failed to rule whether the state violated the fundamental rights of its citizens.

Failure to hold the state accountable:

The verdict fails to hold the government to account for the manner in which it exercised its powers. The court’s failure to give a ruling on the validity of the government’s actions is a cause of concern.
The court has held that every order imposing a restriction should state the reason, the exigency that necessitated it and the features that make it clear that it is the least intrusive measure. The absence of such an order in the public domain is an evidence that the state failed to demonstrate its necessity. The court fails to strike them down on that ground.

Lack of remedial actions:

Though the court states categorically, that an indefinite ban on the Internet is impermissible, it fails to direct the restoration of services.

The court though cautions against the misuse of Section 144 of the Code of Criminal Procedure, yet, it does not direct the authorities to review all their orders and restrictions immediately.
There are concerns being raised that the apex court in its judgment in a fundamental rights case appears to have the character of an advisory opinion.

Conclusion

The SC judgment, while laying down some important principles in a fundamental rights case, appears to have the character of an advisory opinion.