When it comes to the defence of free speech in Jammu and Kashmir, the Supreme Court takes baby steps, taking into account the defence of security used by the Union Territory government, to resist pleas for transparency.
Therefore, it was not surprising when a two-judge bench of the Court, comprising Justices B.R. Gavai and Sanjay Karol, on January 30, thought it fit to distinguish publishing the deliberations of the Review Committee, set up to hear allegations of misuse of power to impose internet shutdowns in the Union Territory, and its orders. The bench made clear its prima facie view that while the deliberations of the Committee might require to be kept away from public disclosure, its orders ought to be published.
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Although the bench gave the Union Territory government’s counsel, Additional Solicitor General K.M. Nataraj, two weeks to take instructions in this regard, it has given sufficient hope to the civil society that notwithstanding the limited intervention by the Court, there could be some room to seek accountability of the government and ensure its compliance with the Review Committee’s orders, if they seek to limit the impact of the internet shutdowns in specific cases.
Genesis of the problem
The Foundation for Media Professionals (FMP), a professional body of journalists in New Delhi, sought the restoration of 4G mobile internet services in Jammu and Kashmir during the COVID-19 pandemic, in 2020. In an order delivered on May 11, 2020, a three-judge bench, headed by Justice N.V. Ramana, (who subsequently served as the CJI before his retirement in August 2022) noted that national security and human rights can be reasonably and defensibly balanced and that it is a responsibility that the Supreme Court takes with utmost seriousness. Justice Gavai, who passed the order in the case on January 30, was a member of that bench, which also comprised Justice R. Subhash Reddy, who has since retired.
The Ramana bench referred to the Court’s previous judgment delivered on January 10, 2020, in Anuradha Bhasin v Union of India, which sought to ensure the imposition of restrictions on the internet in a proportionate manner. The judgment had, in addition to the procedural rules, supplemented the requirements of having timely review and the non-permanence of internet shutdown orders.
The petitioners, in this case, were aggrieved that the Union Territory government had restricted the mobile internet speed to 2G, and in the light of the COVID-19 pandemic and the resultant nationwide lockdown, this had impacted the people’s right to health, education, business, and right to freedom of speech and expression.
The petitioners had also alleged the absence of any rational nexus between the restriction of internet speed and national security. They submitted that since the introduction of the internet in the Union Territory, the number of incidents relating to terrorism in the region had reduced. The petitioners were even ready to concede that if the government apprehended the misuse of data services, then they could consider restricting the internet only in certain problematic areas or providing 3G/4G internet to certain regions on a trial basis.
The Union government had, however, resisted the relaxation of restrictions on access to the internet in the Union Territory, on the grounds of continuing insurgency in the region, and the “spreading of fake news to incite violence, etc.”.
The Ramana bench, to balance the competing claims of the petitioners with that of the Union government, had recalled the Anuradha Bhasin judgment, in which the Court had held that the authorities were required to pass orders concerning only those areas, where there were absolute necessity of such restrictions. The bench had noted with concern that blanket orders had been passed for the entire territory rather than for areas specifically affected by insurgency.
In the Anuradha Bhasin case, the Court had directed that in the usual course, every order passed under Rule 2(2) of the Telecom Suspension Rules restricting the internet is to be placed before a Review Committee which provides for adequate procedural and substantive safeguards to ensure that the imposed restrictions are narrowly tailored.
In the FMP case, the Ramana bench ruled that since the issues involved affect the State and the nation, the Review Committee which consists of only the State level officers, may not be in a position to satisfactorily address all the issues raised. The bench, therefore, constituted a Special Committee comprising secretaries of the Union Ministry of Home Affairs, the Department of Communications, the Union Ministry of Communications, and the Chief Secretary of the Union Territory of Jammu and Kashmir, to examine the contentions of and the material placed by the petitioners and the respondents.
The bench had also directed this committee to examine the appropriateness of the alternatives suggested by the petitioners, regarding limiting the restrictions to those areas where it is necessary and allowing faster internet (3G or 4G) on a trial basis over certain geographical areas.
Due to the unavailability of any information on the functioning of the Special Committee in the public domain, FMP had filed a contempt petition in the Supreme Court, alleging non-compliance by the government with the Court’s orders. Subsequent to the Ramana bench’s judgment, orders imposing internet suspension which had neither been reviewed by the Review Committee nor the Special Committee had been passed, FMP brought to the notice of the Supreme Court in the contempt petition.
During the hearing of the case, Justice Gavai orally observed that orders of the Review Committee “could not be kept in the cupboard”.
The Internet Freedom Foundation, (IFF), a think tank, providing legal assistance to FMP, has described the outcome of the hearing of the FMP’s case on January 30 as a win for transparency as Review Committee orders are rarely published. Given the lack of accountability surrounding the imposition of restrictions on the Internet as well as the indiscriminate issuance of Internet suspension orders, the publication of orders of the Review Committee will curb orders with no application of mind or nexus with the object sought to be achieved from being published, according to IFF.
The proceedings of the next hearing of the FMP’s case in the Supreme Court will, most likely, throw light on whether it can succeed in ensuring the accountability of the government and limit internet shutdowns in Jammu and Kashmir.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues for news portals.