In response to a Supreme Court ruling last week, the central government is restoring broadband connections to government installations and providers of essential services, hospitals, banks and the tourism sector in Jammu and Kashmir. However, the step falls far short of the complete withdrawal of curbs on public communications which the court had sought. ISPs are required to block social media sites and technology by which such a restriction can be bypassed, before providing access to institutions and essential service providers.
Institutions and offices must monitor internet usage, record users and change access credentials every day. A call will be taken on fully opening up mobile data communications after the Republic Day celebrations, the government says. This is far too tentative, considering the spectrum of fundamental rights that have been violated by the internet shutdown in Jammu and Kashmir, which is the longest ever in a democracy.
Last week, responding to petitions by Kashmir Times executive editor Anuradha Bhasin and Congressman Ghulam Nabi Azad, the Supreme Court had ruled that the internet shutdown was in violation of Article 19(1)(a) and Article 19(1)(g), which confer the freedom of speech and expression, and the freedom to practise any profession or occupation, and to operate a business, anywhere in the territory of India. Any curb on public freedoms instituted by the government must be constitutional and proportionate. The internet shutdown fails on the question of proportionality because it is of unspecified duration. Communications may be restricted for very short periods in the interest of public safety but here, there is an absence of a declared cut-off date. Moreover, this shutdown has demonstrated, like never before, that the internet has become the backbone of normal life.
Not only has the suspension of data services curtailed the freedom of speech, it has also exacted business losses in the range of Rs 18,000 crore, according to the Kashmir Chamber of Commerce and Industries, which had welcomed the SC ruling as an opportunity to seek compensation. In addition, commonplace actions like seeking medical advice and filing examination and job applications had become impossible or extraordinarily difficult.
The SC ruling was forward-looking, placing all communications shutdowns under the watch of the court. Judicial oversight would encourage governments to be less arbitrary in the future, for they would have to pass the proportionality test. The inevitability of large compensation claims, in the event of failing the test, would serve as a material deterrent. In the present case, in J&K, the government should try to comply with more alacrity because fundamental rights are at stake.
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