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Monday, August 10, 2020

Liberty and responsibility: SC rulings on internet restrictions in J&K uphold balanced constitutionalism

The supposed clarion-call of some learned academicians and members of legal fraternity of “abdication of duty by the Supreme Court” seems to have completely missed the hard facts in the Valley.

Written by Aishwarya Bhati | Updated: July 9, 2020 9:53:15 am
J&K internet, Govt internet ban in J&K, kashmir social media, J&K internet restoration, kashmir lockdown, kashmir article 370, kashmir special status, fake news, kashmir news, The case is about internet availability in Kashmir, which has a vexed background and a complex geo-political history. (File)

The January 10 judgment of the Supreme Court on internet restrictions in Kashmir was criticised as one “ignoring rights and remedies”. The May 11 judgment on the same issue was described as an “abdication of duty”. The former judgment, in Anuradha Bhasin vs Union of India, laid down guidelines to test the validity of internet suspension orders and their periodic review. The May 11 judgment, in Foundation for Media Professionals vs UT of Jammu & Kashmir, ordered the constitution of a special committee to review the orders passed by the J&K authorities by applying the safeguards laid down by the Court in its January 10 judgment. In a recent webinar hosted by CAN foundation Harish Salve cautioned: “Everybody who has a point of view today thinks the Supreme Court is a national dartboard, on which everybody who has a point of view, has the right to throw a dart. This must stop.”

The case is about internet availability in Kashmir, which has a vexed background and a complex geo-political history. It has been on the receiving end of well orchestrated and incessant proxy war waged by an unstable neighbour. The repeal of Article 370, re-organisation of the erstwhile state of Jammu and Kashmir and the prospect of a brighter future for Kashmir, Jammu and Ladakh, propelled our neighbour into a desperate mode. The COVID-19 crisis has only added to the complexity of the situation on the ground. The recent turn of events bear a testimony to this trend. The excessive firepower and hostility at the LoC and the urgency and recklessness of terrorist activities in the Valley exposes the scheme of using even the pandemic to wreak havoc.

Any analysis of merits and demerits of the SC orders should start from this background information, as a “strict” analysis of the law, without facts, is a purely academic exercise. An important facet of modern terrorism is the use of the internet.

Cyber terrorism is a contemporary phenomenon, wherein terrorists use the internet to influence, communicate and fund violence on a realtime basis. There is no gainsaying that Kashmir is also prey to such technology.

On August 5, 2019, internet services for the entire union territory of Jammu and Kashmir was suspended. A case was filed before the Supreme Court seeking to quash the internet restrictions imposed under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. Strangely, the eminent counsel, arguing the case for the petitioner, conceded that he did not want to challenge the constitutionality of the Rules, rather he was only concerned with their application. Accordingly, the Court, being cognisant of the fact that the Rules do not completely secure the rights of citizens, read into the Rules certain valuable safeguards such as periodic review. The J&K government implemented the SC order by easing internet restrictions in a graded manner.

The situation of Kashmir is dynamic. The government has to be the front-line enforcer of the law laid down by the SC. The Court recognises that the imposition of restriction should be on a proportionate basis. In the past month, more than 10 terrorism incidents have been reported, with more than 15 soldiers/civilians killed. Due to the continuous onslaught of terrorism, internet restrictions may have to be used often for the protection of human lives.

The constitution of the special committee by the Court is in furtherance of “balanced constitutionalism”. The Constitution provides for rights under Part III to be enforced by all the organs of the government. Accordingly, the Court cannot be understood to be the sole protector of rights — the executive and legislature have an equal responsibility.

The framework the Supreme Court has created by its two judgments rightly applies this principle. First, the SC created standards for the executive to apply, including reading in the proportionality requirement. Through its recent May order, the Court has created an important forum to review the orders passed under the Rules. Now, the onus is on the government to show how it complies.

The first step for the government is to gather inputs from individual districts across J&K to assess whether the internet is being misused to circulate fake news. Once such intelligence is gathered, the materials are required to be placed before the concerned authority. The Court necessarily alluded to the fact that restrictions cannot be imposed for the entire union territory through omnibus orders — they need to be tailored district-wise. The findings ought to be based on verifiable data. Further, the government should consider bringing a narrowly tailored legislation to curtail fake news, not only for Jammu and Kashmir but also for the rest of India. The safeguards and caveats ensure that the function of the Supreme Court as an apex interpreter of law remains intact, while leaving the calibration to the executive based on the ground situation.

The supposed clarion-call of some learned academicians and members of legal fraternity of “abdication of duty by the Supreme Court” seems to have completely missed the hard facts in the Valley.

It will be apposite to quote a few prophetic lines of one of the greatest legal doyens, Nani A Palkhivala: “It is true that eternal vigilance is the price of liberty. But it is true, in even a deeper sense, that eternal responsibility is also part of the price of liberty. Excessive authority, without liberty, is intolerable; but excessive liberty, without authority and without responsibility, soon become equally intolerable…. Liberty has a hypnotising sound; while, unfortunately, responsibility has no sex appeal.”

This article first appeared in the print edition on July 9 under the title “Liberty and responsibility.” The writer is a senior advocate practising in the Supreme Court and former secretary, Supreme Court Bar Association.

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