In deciding two petitions relating to the situation in Jammu and Kashmir since August 5, the Supreme Court has made a significant set of observations underscoring and reiterating the freedom of expression enshrined in the Constitution. Most importantly, the Court, while stating that it would not express any view on declaring the right to access the internet as a fundamental right, still went on to make it an integral part of the freedom of expression guaranteed under Article 19 (i) of the Constitution, emphasising that expression through this “medium” is a “major means of information diffusion”, and that freedom to receive information is vital to expression. The court also made the point that the wider circulation of information or its greater impact cannot be cited as reason to restrict internet access or justify its denial. It has also pointed out that in a globalised world, restricting the internet was to restrict the freedom to trade and commerce, protected by Article 19.1 (g). Any restrictions on freedoms guaranteed under Article 19, the Court has observed, would have to be in accordance with the “reasonable restrictions” provided for in clause 2 of the same Article. It has discussed in detail the need for “proportionality” in imposing such restrictions and said that it “cannot extend beyond necessary duration” nor could it be “indefinite”. The three-judge bench rapped the government for refusing to produce before the Court orders imposing restrictions on the internet and on the freedom of movement in J&K, stating that the freedom of information also includes access to information about why restrictions are imposed, including the imposition of Section 144 Cr Pc. It has emphatically stated that the powers under this section “cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights”.
After such an elaborate statement of principles, it is surprising, not to say disappointing, that the court did not apply them to provide relief to the two petitioners, Kashmir Times executive editor Anuradha Bhasin, and MP Ghulam Nabi Azad, by striking down as illegal the clearly indefinite internet ban in Kashmir, now fully five months old (with a couple of relaxations) and the restrictions on movement and assembly that remain in force in the Valley. Instead, it has asked the J&K government to review “forthwith” all orders suspending internet services, and the continuance of orders passed under Sec 144 Cr Pc. Indeed, it appears to have assumed that the restrictions will continue, as it also directs the government to “consider forthwith” allowing government websites, localised or limited e-banking facilities, hospital and other essential services “in those regions wherein the internet services are not likely to be restored immediately”.
While the petitions were specifically about J&K, the questions raised in them have acquired country-wide resonance after protests against the CAA and the proposed NRC. By stating that any order for suspension of internet can be judicially reviewed, but effectively providing no remedy when such a review came up before it, the Court has only left the door open to more litigation. It has pushed back against the state, it needs to do more to secure the people’s right in J&K it has so powerfully underlined.
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