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Tuesday, August 04, 2020

Achieving public order by suspending freedoms is unacceptable

To ensure more of us can get around, government cannot altogether ban us all from trying to get around, as that would defeat the very purpose — of enabling us to get around!

Written by Malavika Prasad | Updated: December 21, 2019 12:25:36 pm
The pattern is clear. Something is done that may trigger protest, which the government reads as a threat to public order. (Express photo: Praveen Khanna)

Communication shutdowns and curfews have rained on us thick and fast this week. There have been reports of shutdowns — as SMS blacks, social media blocks, suspension of mobile internet or suspension of internet access — across Assam, districts of Arunachal Pradesh, Meghalaya, Nagaland, Tripura, Uttar Pradesh, and West Bengal in the wake of protests against the Citizenship Amendment Act. Curfew was declared for three days in Bengaluru in anticipation of similar protests, even though all preceding protests in the city had been entirely peaceful. The most egregious version of a shutdown, as a curfew alongside a blanket suspension of landline, cellular line, mobile and broadband internet, was imposed in the Kashmir Valley with no evidence of likely violence on August 4. This shutdown continues to subsist as a prepaid SMS and internet shutdown 137 days later — the longest ever in a democracy.

The pattern is clear. Something is done that may trigger protest, which the government reads as a threat to public order. As a preventive measure, and without there being any signs of actual public disorder tending to violence, the government suspends communication media and/or imposes curfew. While curfew is declared under Section 144 of the Criminal Procedure Code, to “prevent. danger to human life, health or safety, or a disturbance of the public tranquillity”, communication shutdowns are declared under the Telecom Suspension Rules, 2017, as well as under Section 144. However, both derive their justificatory basis in the government’s power to impose “reasonable restrictions” on the freedom of speech and expression. With the rejection of parliamentary supremacy, Indians rejected a culture of authority and heralded in its place a culture of justification — enforced through the Constitution. Thus, as lawyer-scholars Jahnvi Sindhu and Vikram Aditya Narayan argue, the government is expected to justify not only that it has enacted restrictions to realise the state interests under Articles 19(2)-(6), but also that it has acted in a manner that is suitable, necessary and proportional.

However, there is an even more basic question one must ask of curfews and blanket shutdowns, that are imposed preventively: Does the government have a carte blanche as to choice of restriction, within the express parameters of Articles 19(2)-(6)? Can government order literally anything — in the name of public order — when there is no evidence of any public disorder or incitement to violence?

In our constitutional scheme, the government can use its power to swallow up a right only in exceptional and constitutionally-specified circumstances — when a proclamation of Emergency is in force. Even such an Emergency can only be in force for a period of one month, unless it is also approved by Parliament — which can extend it to six months. In all other contexts, the suspension of freedoms is not permitted. Only “reasonable restrictions” are. It follows then that “reasonable restrictions” can never be suspensions of fundamental rights, least of all for over four months.

One way to think of this would be that there are implied limitations on the government’s power to enact restrictions — a restriction cannot swallow up the right itself. This flows from the Supreme Court’s own reading of our fundamental freedoms. To ensure women’s safety, can we deny the woman’s freedom to choose to be employed at places serving alcohol? Answering in the negative, the Court held in Anuj Garg v. Hotel Assn of India, (2008): “Privacy rights prescribe autonomy to choose profession whereas security concerns texture methodology of delivery of this assurance. But it is a reasonable proposition that the measures to safeguard such a guarantee of autonomy should not be so strong that the essence of the guarantee is lost. State protection must not translate into censorship.”

The Court thus propounds an important theory of restriction. State interests like security are important because they are the prerequisites for us to exercise our freedoms. In pursuing a state interest — towards safeguarding freedoms — the freedoms themselves cannot be suspended. This is a theory of beneficial constraints — we must do less to be able to do more. For instance, lanes constrain driving so that more of us can reach our destinations safely and efficiently. Thus, to ensure more of us can get around, government cannot altogether ban us all from trying to get around, as that would defeat the very purpose — of enabling us to get around!

In short, the pursuit of public order is towards enabling us all to exercise our freedoms as engaged citizens. Achieving public order by suspending our freedoms — whether as a blanket communication shutdown, or as a curfew order — defies logic. To use the words of Justice Vivian Bose, “it is the right which has been made fundamental, not the fetters and limitations with which it may be circumscribed.” (Krishnan v. State of Madras, AIR 1951). It is high time we resumed viewing these state interests as designed to further rather than eviscerate our freedoms.

This article first appeared in the print edition on December 21, 2019 under the title “Unreasonable restrictions”. The writer teaches at NALSAR Universtity of Law, Hyderabad.

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