Srinagar: Free speech campaigners and legal experts have slammed the Jammu and Kashmir administration for using a controversial law to ban virtual private networks (VPN) and arbitrarily detain violators, calling it a direct attack on individual freedoms and the right to information.Allegations of the executive’s arbitrary use of emergency powers surfaced after the administration in Doda district of the Chenab valley detained an unspecified number of residents under “technical surveillance” who were found to be using VPNs .In an order on May 2, which was issued in the aftermath of the Pahalgam terrorist attack, Doda’s deputy commissioner Harvinder Singh imposed a ban on VPNs, citing “serious threat to public order, tranquility, and national security”.The two-month ban was imposed under section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the new version of the controversial section 144 of The Code of Criminal Procedure which grants emergency powers to a magistrate to regulate communication or public movement.‘By its very terms, unconstitutional’Legal experts argued that the use of VPNs was not illegal in the country and invoking section 163 of BNSS, a vestige of India’s colonial rule, to regulate information and curtailment of individual liberties could deal another blow to the country’s democratic credentials.In a press statement on May 16, the Doda district police said that it has detained “several individuals” for “bypassing internet restrictions” by using VPNs.“All detained individuals are currently being questioned, and further legal action shall be initiated as per relevant provisions of the law,” the statement said, noting that the use of VPN was “prohibited ….. till the order remains in force” and “any violation … will attract strict penal consequences”.Nitya Ramakrishnan, senior advocate at the Supreme Court told The Wire that the section 163 of BNSS granted “blanket and unguided power” to the executive and the law was “by its very terms unconstitutional”.“The use of section 163 against communications is a frontal violation of individual liberty. Today’s rhetoric that anything is alright in the name of security is pernicious and is tantamount to saying that any security agency is king. To make the violation worse, the supposed offenders have also been denuded of their liberty,” she said.‘Bad in law’Habeel Iqbal, a senior lawyer based in Kashmir, said that VPN use was not banned under rules passed by the Union Ministry of Electronics and Information Technology in 2022, “The VPN providers only have to store the data for five years. Under the rules, there is no provision for arresting those using VPNs”.Iqbal said that the detentions in Doda under section 163, which carries maximum punishment of one year, was “bad in law” as the Supreme Court in 2023 ruled that the police was not required to arrest suspects held under charges which carry maximum punishment of less than a seven-year jail term.“Whether the order (to ban the VPN under section 163) can be issued is a matter of debate. But if somebody circumvents the order, it is a bailable offence. The authority has to release the detainee then and there. If the suspect isn’t aware, the police have to inform them about their rights, make them sign a bond and release them,” Iqbal said.‘Preventive measure’Civil rights activist and free speech defender Geeta Seshu asserted that section 163 is meant to be a preventive measure invoked “in the case of extreme emergency”. She said that access to the internet was a fundamental right under the constitution and any ban on access to information was “detrimental to citizens’ right to know”.Earlier this month, the Union government launched a crackdown on some news and other websites, many of them based in Pakistan, for “disseminating provocative and communally sensitive content, false and misleading narratives and misinformation against India, its Army and security agencies”.The YouTube channel of Dawn, a prominent English daily of Pakistan, among at least 16 YouTube channels operating out of the neighbouring country were blocked in the aftermath of ‘Operation Sindoor’ while 8,000 X accounts were also withheld in India, some of which continue to remain inaccessible to the users.“At a time like this when disinformation is rife, the government needs to ensure transparency, not hide behind bans and censorship,” said Seshu, co-founder of Free Speech Collective, a network of individuals dedicated to defending and promoting freedom of expression.Seshu wondered if the VPN ban was a “sign of nervousness about people’s access to information” emanating from across the border in Pakistan and Pakistan-occupied Jammu and Kashmir.“I don’t think that’s a very reassuring indicator for a democracy like India. In fact, it worsens the spread of disinformation,” she said. “Besides, the use of BNSS is disquieting as it is separate from the detailed provisions for blocking or shutting down of internet services laid down under the Information Technology Act”.Seshu said that the Supreme Court has already issued guidelines on the powers of the executive to regulate the internet and on the processes to review these orders. “But, there are very weak mechanisms to review orders issued by district magistrates under section 163.”In defenceSrinagar-based lawyer Umair Ronga defended the administration’s move, saying that the VPN ban was a “necessary and justified measure in the interest of national security” in a sensitive region like J&K.“While VPNs have legitimate application, their misuse poses significant threats in conflict-prone or security-sensitive zones which can undermine surveillance and law enforcement, facilitate cybercrime, pose a threat to national security and violate governmental restrictions. These looming threats outweigh any benefits,” he said.Ronga added, “Until the security situation (in J&K) stabilises, enforcing a ban on VPNs is a reasonable and proportionate response. It ensures that national interests, public safety and law enforcement capabilities are not compromised in any manner.”