Why the SC Judgment on Kashmir Internet Shutdown Falls Short of Expectations

New Delhi: Nearly six months after the Centre disconnected the entire population of the Kashmir Valley from the internet following the withdrawal of special status to the erstwhile state of Jammu and Kashmir on August 5 last year, the Supreme Court finally pronounced its judgment on a clutch of petitions challenging the shutdowns.

But though the 130-page judgment delivered by Justice N.V. Ramana, R. Subhash Reddy and B.R. Gavai makes a strong case for limiting the government’s power to restrict a citizen’s access to the internet, it has no explanation for why the court could not strike down restrictions which it found “unreasonable”.

The bench made it clear that an order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017, and that suspension can be resorted to only for temporary duration. “Any order suspending [the] internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration,” the bench held.

Finding that the existing suspension rules neither provide for a periodic review nor a time limitation for an order issued under it, the bench said that the review committee constituted under 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). The bench has also directed the competent authorities to review all orders suspending internet services forthwith.

Also read: Kashmir: Indefinite Suspension of Internet Not Permissible, Review Orders in a Week, Says SC

But what if such periodic review permits continuation of orders suspending the internet, thus making a mockery of the qualifier “temporary” before the word “suspension”? The bench appears to have no answers, except to say that any order suspending internet under the suspension rules is subject to judicial review.

What if the judicial review, guaranteed by the court, itself takes a long time to provide relief as in the present case? Again, the court has no answers, implying that the government could get away presenting a fait accompli, before the court could act, as in the meantime, the citizens subjected to unreasonable restrictions could have availed no immediate relief.

Among the court’s directions, the one given under paragraph (i) suggests whether the bench envisages the possibility that general internet services are not likely to be restored immediately. It says:

“In any case, the state/concerned authorities are directed 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.”

Check on abuse of Section 144

The bench also made it clear that the state’s power under Section 144 CrPC – restricting a citizen’s freedom to move and assemble – could only be used to prevent danger, if it is in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. More important, the power under Section 144, the bench clarified, cannot be used to suppress the legitimate expression of opinion or grievance or exercise of any democratic rights.

Supreme Court. Photo: PTI

The bench’s insistence that an order under Section 144 CrPC should state the material facts to enable judicial review, and that it should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind is an important check on the future abuse of this power. The bench has made it clear that repetitive orders under Section 144 CrPC would be an abuse of power. This too would limit the arbitrary exercise of this power by the executive.

The bench directed the competent authorities to review the need for continuance of any existing orders under Section 144 in accordance with the law laid down in this judgment. This again could pave the way for future challenges, if the review, directed by the court, proves to be illusory.

Questions before the court

Rather than the operative part, however, it is the substantive discussion in the judgment which explains the compulsions of the bench in answering the prayers of the petitioners in the case. The two petitioners were executive editor of Kashmir Times, Anuradha Bhasin and senior Congress leader Ghulam Nabi Azad.

Also read: Centre, J&K Suppressed Orders Related to Communication Blockade, SC Told

The petitioners sought the setting aside or quashing of any and all order(s), notifications, directions, and or circulars issued by the government under which any/all modes of communication including internet, mobile and fixed line telecommunication services have been shut down or suspended or in any way made inaccessible or unavailable in any locality. They had also sought the immediate restoration of all modes of communication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide an enabling environment for the media to practice its profession.

The third prayer was to ensure free and safe movement of reporters and journalists and other media personnel. Bhasin also prayed for the framing of guidelines ensuring that the rights and means of media personnel to report and publish news is not unreasonably curtailed. The bench chose not to answer this prayer.

A question of rights

The court said that the curtailment of internet access is a restriction on the right to free speech, and should be tested on the basis of reasonableness and proportionality. The procedure to be followed for restricting internet services is provided under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules 2017 (herein after “Suspension Rules”) which were notified under the Telegraph Act. The Suspension Rules indicate that the restriction imposed was of a temporary nature.

Ghulam Nabi Azad asked how the state balanced the rights of individuals, if it is assumed that there was some material available for the purpose of passing the orders under Section 144 CrPC. He said that the state had not indicated as to the necessity to block landline services. While there can be some restrictions, there can be no blanket orders, as it would amount to a complete ban, he submitted before the bench. A distinction should be drawn while imposing restrictions on social media/mass communication and the general internet. The least restrictive option must be put in place, and the state should have taken preventive or protective measures, he had pleaded. The bench accepted these submissions, but underlined that even the petitioners did not suspect anything mala fide in the restrictions.

Also read: No Social Media, Full Data Access to Cops: Kashmir Internet to Come With 6 Conditions

Azad also pointed out that internet restrictions also impinge on the right to trade. A less restrictive measure, such as restricting only social media websites like Facebook and WhatsApp should and could have been passed, as has been done in the country while prohibiting human trafficking and child pornography websites. Kapil Sibal, appearing for Azad, pointed to orders passed in Bihar and in Jammu and Kashmir in 2017, restricting only social media websites, and submitted that the same could have been followed in this case as well. The bench expressed its dissatisfaction that the respondents did not consider this option at all.

The bench has implicitly rejected the contention of Solicitor General Tushar Mehta that the jurisprudence on free speech relating to newspapers cannot be applied to the internet, as both the media are different. While newspapers only allowed one-way communication, the internet makes two-way communication by which the spreading of messages is very easy, Mehta had contended. It is not possible to ban only certain websites/parts of the internet, while allowing access to other parts; such a measure was earlier attempted in 2017, but it was not successful, Mehta had argued. But the bench remained unconvinced.

The Jammu and Kashmir administration opposed selective access to internet services based on lack of technology to do the same. If such a contention is accepted, then the government would have a free pass to put a complete internet blockage every time. Such complete blocking/prohibition perpetually cannot be accepted by this court, the bench said.

A Kashmiri woman walks past a jawan as he stands guard in front of closed shops during restrictions, after scrapping of the special constitutional status for Kashmir by the Indian government, in Srinagar, August 22, 2019. Picture taken August 22, 2019. Photo: Reuters/Adnan Abidi/File Photo

The bench saw no valid ground to refuse production of orders restricting free speech before the court.  While the state initially claimed privilege, it subsequently dropped the claim and procured certain sample orders, citing difficulty in producing all the orders before the court.

Freedom of speech and expression through the medium of the internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the constitution. Freedom of trade and commerce through the medium of internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6), the bench has held.

But the bench was reluctant to declare that right to access the internet itself is part of freedom of expression. “None of the counsels have argued for declaring the right to access the internet as a fundamental right,” the bench reasoned as a justification for not expanding this precious right, even though the right to carry on any trade or business under Article 19(1)(g), using the medium of internet is constitutionally protected.

Also read: Kashmir: Document Shows J&K Police ‘Monitoring’ Posts on Social Media

The bench rejected the petitioners’ contention that restrictions under Article 19(2) cannot mean complete prohibition. Relying on case law, the court found no basis for it. However, the court agreed that there should not be excessive burden on free speech even if a complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain as to why lesser alternatives would be inadequate.

Citing US precedents, the court concluded that any speech which incites imminent violence does not enjoy constitutional protection.

“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,” the bench added.

“Complete broad suspension of telecom services, be it the internet or otherwise, being a drastic measure, must be considered by the state only if necessary and unavoidable. In furtherance of the same, the state must assess the existence of an alternate less intrusive remedy. The suspension rules have certain gaps, which are required to be considered by the legislature. One of the gaps relates to the usage of the word ‘temporary’ in the title of the suspension rules. Despite the above, there is no indication of the maximum duration for which a suspension order can be in operation. Keeping in mind the requirements of proportionality expounded in the earlier section of the judgment, an order suspending the aforesaid services indefinitely is impermissible. It is necessary to lay down some procedural safeguard till the deficiency is cured by the legislature to ensure that the exercise of power under the Suspension Rules is not disproportionate,” the bench reasoned.

A government, if it thinks that there is a threat to the law and order situation or any other such requirement, must follow the procedure laid down by law, taking into consideration the rights of the citizens, and pass appropriate need-based orders, the bench held.

SC judgment on Kashmir internet shutdown by The Wire on Scribd

‘Chillings effects’

But there is one aspect of this judgment which is likely to disappoint those who defend freedom of the press. The bench appears to have erroneously rejected Bhasin’s contention that the internet restrictions have had a “chilling effect” on the freedom of the press.

“To say that the restrictions were unconstitutional because it has a chilling effect on the freedom of the press is to say virtually nothing at all or is saying something that is purely speculative, unless evidence is brought before the Court to enable it to give a clear finding, which has not been placed on record in the present case,” the bench observed.

Bhasin claimed that she was not able to publish her newspaper from August 6 to October 11 last year. However, no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area.

“Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self-serving purpose. On the other hand, the SG submitted that there were other newspapers which were running during the same period”, the bench held, and quipped: “There is no justification for allowing a sword of Damocles to hang over the press indefinitely.”

But as the expression “chilling effect” suggests, individuals who suffer it, are unlikely to leave any evidence of having suffered it, because they would refrain from taking any risk, which could potentially invite the wrath of the government. Therefore, the argument on “chilling effect” of restrictions on internet on the freedom of expression could not be rejected merely because no evidence could be cited to buttress it.