May 14, 2020 12:50:59 am
The Supreme Court order on Monday declining pleas for restoration of 4G internet services in Jammu and Kashmir is disturbing for several reasons. The continued denial of such services in the lockdown constitutes a special injustice to a people deprived of fundamental freedoms since the Centre’s August 5 2019 decision to abrogate Article 370 — the present 2G service is not enough for children to access online classes, or for patients to consult doctors, or for businesses dependent on online transactions.
But the SC order is also troubling because it appears to be part of a broader pattern of delay and evasion, and passing the buck, in cases that touch upon fundamental rights and crucial policy issues — in ways that amount, effectively, to giving the political executive the benefit of the doubt. Monday’s order, for instance, does not just contain no-questions-asked references to “national security” and “compelling circumstances of cross-border terrorism”, it also cedes the court’s own powers of judicial review to a special committee headed by the Union Home Secretary, which will examine the contentions of the petitioners as well as the “appropriateness of the alternatives” suggested by them. In other words, the apex court has held that another body, consisting of secretaries of the very departments whose orders are in question, should adjudicate on the validity of the restrictions on people’s freedoms imposed by them.
There is no doubt that in J&K, imperatives of national security need to be factored in, a delicate balance must be struck. But the process of doing so must be both judicious and judicial. More generally, while executive assessments are a crucial input, they cannot be the only, or unquestioningly, the last word, in cases that involve constitutional principle and law. By throwing the ball on internet access back to a government-led committee, and by its delay in taking up cases of habeas corpus in Kashmir, the court has given the executive a free pass, instead of acting as a check and balance on executive power.
The apex court is the custodian of fundamental liberties and the fiercely independent upholder of the letter and spirit of the Constitution. That it should be seen to display a lack of urgency on important cases where the executive needs to do the explaining is disappointing and dispiriting.
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