The ruling by a three-judge bench of the Supreme Court on Friday in the Kashmir lockdown and communications shutdown cases has been far too long coming. Triggered by the petition filed by Anuradha Bhasin, the editor of the Kashmir Times, and clubbed with the concerns raised by other affected press groups and elected representatives, the case pertained to the internet shutdown and clampdown on other communication networks in the erstwhile state. It also dealt with the impact the prohibitory orders issued by the district magistrates of the Union government-controlled Jammu and Kashmir Administration, under Section 144 of the Code of Criminal Procedure, were having on press freedom.
The Supreme Court’s decision makes certain things clear with respect to our civil liberties in this digital age, while leaving several legal issues and matters of relief to residents of Jammu and Kashmir to the future. The Court has confirmed that the expression of speech, as well as the conduct of trade and business via the internet, is protected under Article 19 of the Constitution. The bench’s ruling reiterates the importance of testing any restriction to the fundamental right to freedom under Article 19 of our Constitution against the principle of necessity and proportionality. In the process, the precedent established by the Supreme Court’s nine-judge bench ruling on the fundamental right to privacy has been further cemented into the country’s law — despite the efforts of the lawyers of the Union government.
Indeed, what was remarkable about the case was the troubling call for unprecedented executive power by the government in order to enable it to take actions that intrude on the civil liberties of citizens — with little space for judicial oversight. Till date, the Union government has not filed copies of all the internet shutdowns relevant to this case before the apex court. Instead, it has tried to assert a form of executive privilege that has no place in a 21st century democracy. Government arguments also tried to conflate legal positions regarding conduct in times of war with those pertaining to the maintenance of law and order, which the Supreme Court luckily chose not to accept.
When it comes to internet-related restrictions, this judgment has one clear, unqualified message — it clearly lays down that any government order that impacts the exercise of fundamental rights must be a reasoned and publicly-accessible order. This verdict may have larger, lasting consequences even for fundamental rights in our digital age, since other rules created and used by the Union government, particularly under the Information Technology Act, have allowed the blocking of countless websites via secret orders that are not published. This has hurt democracy and gone against the principles of judicial oversight and the necessity to have thorough checks and balances. We should also be concerned by the repeated efforts of the Union government since 2015 to assert that the broad reach of digital communications somehow justifies even more intrusive executive powers and the loosening of judicial standards controlling government actions impacting fundamental rights.
This judgment should be seen as a work in progress. It leaves many issues of actual state measures impacting citizens today, and matters of law, open. It should also be seen as a call for further action. The Centre, which oversees the administration of the current Union Territory of Jammu and Kashmir, has to decide whether to continue its restrictions on internet services — and if so, it has to justify why and make its reasons public. The implication of the Supreme Court’s judgment — perhaps less explicit legally than what it should have been ideally — is that the internet shutdown in Jammu and Kashmir has not been clearly justified under the current legal framework. Any extension of the shutdown there will likely be challenged before the courts and will face the judiciary’s scrutiny.
The executive has also been told that its current Telecom Network Suspension Rules of 2017 has gaps, and that the rules require improvement. The Court did state that it was not being asked to scrutinise the rules and pointed out that it was not testing their constitutionality. However, it made it clear that the status quo on the 2017 rules is not acceptable — it has, in effect, provided guidelines that the executive has to follow in the interim.
Some state high courts have already noted that government actions on internet shutdowns go beyond this flawed legal framework. Last year, for example, a bench of the Rajasthan High Court indicated its displeasure at the state government delegating shutdown powers to district administrations during examinations and the Gauhati High Court ordered the lifting of the Assam internet shutdown after the anti-CAA protests began.
The Union government should actually reconsider this problematic legal framework that enables and excuses internet shutdowns in the first place. Issued in August 2017 under a clause of the Telegraph Act passed by the British Raj in 1884, and notified with no public consultation and despite repeated concerns by MPs on the growth of internet shutdowns in India, these rules have let shutdowns spiral out of control. India has the ignominy of leading the world in terms of the number of internet shutdowns ordered by government authorities last year. We must act to ensure that a shutdown of our increasingly digital lives does not become mainstream standard operating procedure.
This article first appeared in the print edition on January 11, 2020 under the title ‘A work in progress’. The writer is senior international counsel at Access Now and chair of the Internet Freedom Foundation
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