7 PM |The value of the SC’s Kashmir order| 13th January 2020

Context:Supreme Court verdict on internet shutdown in Kashmir.

More in news:

• Internet services in Jammu and Kashmir (J&K) are shut since the abrogation of Article 370 on August 5 last year
• Recently, the Supreme Court gave a judgement in response to petitions filed against the Internet shutdown and curbing of other civil liberties in the Jammu and Kashmir (J&K).

Internet Shutdown:

• Internet shutdown refers to a deliberate suspension of internet services in a limited area, for a given amount of time, usually on the orders of the government. 
• There are two key-components to this definition:
• An Internet shutdown is always Government-imposed i.e. Internet Service Providers serving the locality in question are ordered by an agency of the Government to cut-off Internet services to that area
• An Internet shutdown always imposes a blanket ban on Internet access, where access to the Internet as a whole is disabled, and not a surgical ban, where access to particular content/services is disabled leaving access to other content/services unaffected.
• Internet shutdowns are generally instituted as a measure to curb violence and unrest in conflict ridden areas.
• The explanation offered by authorities is that the Internet makes it much easier to spread rumors and false propaganda, making it more likely for violence to break out.
• Shutdowns are imposed at times in conflict prone areas as a preventive measure for similar reasons.
• Internet shutdowns have also been imposed in India for far more trivial reasons such as preventing cheating during exams and mitigating tensions during a highly anticipated wrestling match.
• In 2016 and 2017, India reported the highest number of internet shutdowns in the world.

• According to internetshutdowns.in website, of the 381 Internet shutdowns recorded between January 2012 and January 4th 2020, 236 were observed to be preventive i.e. restrictions imposed in anticipation of law and order situation and 146 shutdowns were reactive in nature i.e. imposed in order to contain on-going law and order breakdowns
• Longest Shutdown:162 Days and Counting (4th August 2019 – Present) in Kashmir, Jammu and Kashmir.  An internet shutdown was imposed on 4th August 2019, when Article 370 of the Constitution was abrogated by the Parliament of India. There was a Presidential order 272 dated 5th August 2019 which stated this. The beginning of the communication blockade saw landlines as well as Mobile services restricted, the ban on landlines was lifted but suspension of mobile internet continues in the valley.

The Supreme court Verdict:

• The Supreme Court pronounced judgment in Anuradha Bhasin v UoI and Gulam Nabi Azad v UoI on January 10, 2020.
• The judgment has laid down the law on the issue of Internet shutdowns.
• In the verdict, the Supreme Court declared that the fundamental right to freedom of speech and expression and the right to carry on trade or business using the Internet are constitutionally protected.
• Access to the Internet and exercise of fundamental rights: The Supreme Court has recognised that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected. This declaration would make it easier to challenge shutdown orders in future.
• Orders to be published: 
• The Court also emphasised on the need for transparency and has mandated that shutdown orders need to be published. The biggest obstacle in challenging shutdown orders in the past was the lack of transparency.
• This will go a long way in ensuring that the suspension orders can be challenged under Art.226 of the Constitution before the concerned High Courts. 
• Reasoned order to be passed: 
• The Court held that Rule 2(2) of the Telecom Suspension Rules, 2017 requires every order passed by the competent authority to be a reasoned order.
• The Court further held that if an authorized officer is passing the order in unavoidable circumstances, the officer should indicate the necessity of the measure as well as the “unavoidable” circumstance necessitating his passing such an order.
• Proportionality principle: 
• The court makes clear that the constitutional validity of an Internet shutdown has to be adjudicated in accordance with the doctrine of “proportionality”.
• The doctrine of proportionality requires the court to ask whether a violation of rights is “proportionate” to the goal or the purpose that the State wants to achieve.
• The State must demonstrate that the method it has chosen is the “least intrusive” one. In order to tackle cross-border terrorism and online radicalisation, one does not place an entire people under a communications lockdown.
• The doctrine of proportionality ensures that it is not enough for the State to simply cite law and order concerns.
• Suspension to be temporary in nature: 
• The Court held that suspending internet services indefinitely is impermissible. 
• It directed that the review committee must meet within 7 days of the previous review and look into compliance with requirements of Section 5(2) of the Telegraph Act as well as the proportionality of orders.
• Orders under Section 144 of Cr.P.C to state material facts: 
• The court held that power under Section 144 of CRPC is remedial as well as preventive and can be exercised when there is both a present danger as well as apprehension of danger.
• Section 144 cannot be used to suppress expression of opinion. Any order passed under Section 144 should state material facts to enable judicial review.
• The Court held that there shouldn’t be repetitive use of Section 144 as well as it would amount to abuse of power.

Challenges:

• It states categorically that an indefinite ban on the Internet is impermissible, but fails to direct the restoration of services in J&K.
• SC’s judgment also does not provide immediate relief. It leaves the door open for the executive to argue that these orders are justified on security grounds, and for another, perhaps prolonged, the legal process for the full resumption of rights.

Way Forward:

Although the judgment has not given any immediate relief to the people in Kashmir affected by the shutdown, we hope that the Internet blockade in Kashmir will be lifted at the earliest based on the law laid down in the judgment. The positive aspect of the judgment is that the Apex Court has laid down the law on Internet shutdowns with emphasis on proportionality and reasonableness. The need to issue reasoned orders along with the mandate to make all orders public could result in reduction of arbitrary shutdowns. Removing the veil of secrecy from shutdowns itself could help in reducing the number of shutdowns. The number of shutdowns in 2020 would determine whether this judgment has helped in protecting the rights of the citizens.

Source:https://www.hindustantimes.com/columns/the-value-of-the-sc-s-kashmir-order-opinion/story-AQBLRCMYZ2mkAhVWWiMnIL.html