Supreme Court’s order on Kashmir internet shutdown: Judicial abdication or judicial restraint?

This post first appeared on Times of India on May 12, 2020

The Supreme Court on Monday pronounced its order in the Foundation of Media Professionals v. Union Territory of J&K (for the restoration of 4G services in Jammu and Kashmir).

The Court did not allow for the restoration of services – nor did it engage with the arguments of the parties in its order. Instead, the Court asked a special committee headed by the Union Home Secretary and comprising of the Secretary of Department of Communications, Government of India and the Chief Secretary of the Union Territory (UT) of Jammu and Kashmir (J&K) to examine the prevailing circumstances in the UT and determine whether the restrictions on internet services should continue.

Arguments of Parties

The current petition was filed by Foundation for Media Professionals, a not for profit comprising of journalists to uphold media freedom and promote quality journalism. In its petition, the foundation prayed for the restoration of 4G services in J&K with immediate effect. Apart from raising the challenge on the ground of right to freedom of speech and expression [Article 19(1)(a) of the Constitution], the petition also contended a violation of Articles 19(1)(g), 21 and 21A of the Constitution.

According to the petitioners, the restriction on 4G internet in the times of Covid-19 restricts the right to business, education, health, and speech and expression of the people of J&K. The restriction makes it impossible for individuals in J&K to access information, government advisories, and orders relating to Covid-19. It makes it impossible for doctors to have video consultations and prevents the doctors in the UT from gaining access to the latest studies and treatments of Covid-19. This violates to right to healthcare of the people and is a violation of Article 21. The right to access to justice of people in J&K is also restricted (since most courts are only functioning through video conferencing and filing is also taking place online), thereby violating Article 21. These restriction also prevent a large number of people in J&K from complying with work from home orders of the government and violates the right to trade under Article 19(1)(g) and right to livelihood under Article 21.

The petitioners also argued that the order by the J&K administration does not adhere to the requirements laid down by the Supreme Court in the recent judgment in Anuradha Bhasin v. Union of India.

A significant argument of the petitioner was also that given the situation arising due to the spread of Covid-19 and the unprecedented times we are in, the restriction on 4G services is disproportionate since it applies to the entire J&K.

The government, on the other hand, argued that because of the prevailing security situation in J&K and the use of the internet by insurgents and terrorists to spread violence, it is not possible to provide 4G services in the region. It also contended that there is no restriction over broadband and fixed line internet, and that the government is taking alternate measures to provide information relating to Covid-19 and for the education of students in the region.

Anuradha Bhasin and Guidelines for Internet Shutdown

In Anuradha Bhasin, the Court laid down various guidelines/ safeguards which the government needs to follow before ordering an internet shutdown.

It held that the shutdown order should specify the exact duration of a shutdown and it cannot be indefinite. It directed the Review Committee formed under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, to review the shutdown orders every seven days.

Additionally, the Court stated that these orders must pass the test of proportionality. It held that the government must identify the exact stage of public emergency before shutting down the internet, since that will assist the committee in determining the proportionality of the measure.

However, despite laying down all the principles, the Court did not decide the validity of the shutdown orders and passed on this job to the review committee.

The Current Order: Second Round of Judicial Abdication on Internet Shutdowns?

In the current case, despite having the benefit of the Auradha Bhasin guidelines, the Court did not apply them. As stated above, it instead asked a special committee to determine to question of the continuation of the internet restrictions.

The Court starts by stating that fundamental rights need to be balanced with national security concerns. It rightly points out the importance of national security concerns prevailing in J&K and their role while deciding on the restrictions.

In Bhasin the Court already acknowledged that modern terrorism relies heavily on the internet, noting that the internet is being used to support proxy wars and to raise money, recruit and spread of propaganda. It has been well established that infiltration attempts increase in Kashmir valley from May every year. This year also around 300 terrorists are waiting to cross over from Pakistan occupied Kashmir to India. There is also a fear of terrorists using drones in J&K.

In light of this, a clear public emergency situation exists. However, the question is whether the situation is the same in the entire Union Territory of Jammu and Kashmir and requires a restriction on 4G services in the entire region, or is the restriction overbroad?

The Court, in its order, found that the order prohibiting 4G internet services while limited does not specify the reasons for the restriction through J&K. The Court has held that the order for limiting of services should only be for areas, “where there is absolute necessity of such restrictions to be imposed, after satisfying the directions passed earlier” [in Anuradha Bhasin].

However, strangely the Court states that “A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored.”

While, the prevailing security situation in J&K may be a legitimate aim to restrict the 4G internet service and should be a factor in determining the proportionality of the restrictions, the order does not explain how this is a factor for the Court to refuse to apply its own judgment and the legal principles laid therein is not explained.

The Court should have found the current J&K Order for restricting 4G services illegal and struck it down for not complying with the guidelines under the Telecom Suspension Rules and safeguards laid down in Bhasin. To balance it with the security concerns in J&K – the Court could have additionally provided the J&K administration a few days to come up with a new order (if they so desired), which complies with the guidelines.

The Road Ahead

The Court has directed the special committee to look at the material presented by petitioners, examine the alternatives, including the petitioners suggestions of placing restrictions only in areas where there is a serious public emergency situation and allowing 3G/4G internet in certain areas on a trial basis.

While it does not provide immediate relief to the residents of J&K, this judgment like Bhasin is a little step forward in making internet shutdowns in India more transparent, proportional and accountable. The order by the Jammu & Kashmir administration prohibiting 3G/4G services in the region expired yesterday. One can only hope that if a new order is passed, the administration will comply with the guidelines under Bhasin and limit the restriction only to areas where there is an actual security threat.

In a country which has the most number of internet shutdowns in the world, these incremental steps by the highest Court of the country may not be enough. Ultimately they leave the fate of a large part of India population in the hands of the bureaucrats – who may not be the best suited to make these decisions on proportionality. However, along with Bhasin, today’s order and its limited reasoning is something to be built upon in future challenges to internet shutdowns in India.

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