Verdict on Internet curbs in J&K in defence of free speech, but relief remains elusive

Published : January 11, 2020 14:58 IST

Journalists of various local newspapers work at the government media facilitation centre owing to the Internet ban in Kashmir, in Srinagar, on January 10. Photo: PTI

Anyone reading the Supreme Court’s judgment in Anuradha Bhasin vs Union of India, pronounced on January 10, would find it paradoxical. The bench of Justices N.V. Ramana, R. Subhash Reddy and B.R. Gavai, declared that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of Internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g) respectively. While such freedom is not absolute, the restrictions imposed on it should be in consonance with the mandate under Article 19(2) and Article 19(6) of the Constitution, inclusive of the test of proportionality, the bench ruled.

The bench, however, was unable to accept the prayers of the petitioners, Anuradha Bhasin and the Congress leader Ghulam Nabi Azad, to quash the government orders leading to suspension and shutting down of Internet, mobile and fixed line telecommunication services because no such orders were placed before it. The petitioners could not get the orders on their own and the government too, for inexplicable reasons, refused to place them for scrutiny. The bench expressed its dismay over the government’s refusal to do so, even while making it mandatory to publish all orders in force and any future orders to enable affected persons to challenge it before the High Court or any other appropriate forum.

Finding itself in a dilemma of how to quash “non-existent” orders to suspend Internet and mobile services, the bench chose the next best option of asking the government to constitute a review committee to review such orders once in every seven working days as suspension of such services can be resorted to only for a temporary duration. The bench also directed the competent authorities to review all orders now in force for suspending Internet services forthwith.

The bench held: “Orders not in accordance with the law laid down above must be revoked. Further, in future, if there is a necessity to pass such orders, the law laid down herein must be followed.”

As an additional safeguard, the bench directed that in any case the state/concerned authorities should consider forthwith allowing government websites, localised/limited e-banking facilities, hospitals’ services and other essential services in those regions wherein the Iinternet services are not likely to be restored immediately. The bench was apparently conscious that the review committee constituted by the government could recommend suspension of Internet services week after week, making the mandatory requirement to apply such restrictions for a temporary period appear hollow.

These directions, observers hope, will make the government accountable even for its past omissions and commissions following the withdrawal of the special status for Jammu and Kashmir by amending Article 370 of the Constitution on August 5 last year. The Supreme Court is likely to start hearing the several petitions filed to challenge the constitutionality of the withdrawal of the special status of Jammu and Kashmir from January 22. However, the January 10 judgment drew a line between the merits of that decision and the proportionality of the restrictions sought to be imposed on citizens in the guise of national security interests arising from it.

The judgment, while not providing any immediate relief to the affected citizens of Kashmir, opens the door to future challenges against any arbitrary decision of the government by ignoring the key principles laid down in it. One such principle is that the power under Section 144 of the CrPC, being remedial as well as preventive, is exercisable not only where there exists present danger but also when there is an apprehension of danger. However, the bench qualified it by saying that the “danger” contemplated here should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.

Section 144 of the CrPC deals with the power to issue an order in urgent cases of nuisance or apprehended danger in order to prevent assembly of persons at a particular place or area to preserve public tranquillity.

More significant, the bench made it clear that the power under Section 144 cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic right. Given the rampant use of this provision by the government in recent times to quell agitations against the Citizenship Amendment Act or the brutal unleashing of violence by non-state actors in Jawaharlal Nehru University, the judgment is a timely reminder to the government of the limits to its power.

The bench also enumerated the conditions governing the exercise of power under Section 144. An order under Section 144, the bench held, should state the material facts to enable judicial review of the same. “The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order”, the bench held.

Although Section 144 itself envisages recording of the material facts by the Magistrate concerned before issuing any directions under it, the fact that the Supreme Court has to remind the competent authorities of this responsibility and the reasons for exercising it shows that the court was concerned with several instances of breach of the conditions.

Doctrine of proportionality

A key contribution of the judgment is in expounding the doctrine of proportionality. While exercising the power under Section 144, the Magistrate is duty bound to balance the rights and restrictions based on the principle of proportionality and thereafter apply the least intrusive measure; repetitive orders under Section 144 would be an abuse of power, the bench held. By directing the authorities to review forthwith the need for continuance of any existing orders passed under Section 144, in accordance with the law laid down in the judgment, the court has enabled future legal challenges if the authorities, in Kashmir or elsewhere, choose to ignore the limits set by the court at the bidding of their political masters.

The concepts of balancing and proportionality are not new formulations under the Constitution. In various parts of the Constitution, the Supreme Court claimed to have taken a balancing approach to harmonise two competing rights. While conceding that Jammu and Kashmir had been a hotbed of terrorist insurgencies for many years, the bench asked whether there existed a clear and present danger in restricting freedom of expression in Kashmir. Noting that the law in the United States on freedom of expression has undergone a lot of changes concerning dissent during war, the bench underlined that any speech that incites imminent violence does not enjoy constitutional protection. Thus, the bench conceded that an abrasive statement with an imminent threat may be restricted if the same impinges upon the sovereignty and integrity of India. “The question is one of extent rather than the existence of the power to restrict,” the bench underlined.

Borrowing from Lord Diplock’s aphorism, “you must not use a steam hammer to crack a nut, if a nutcracker would do” (R vs Goldsmith (1983)), the bench explained that proportionality was all about means and ends. Relying on case law and several foreign precedents, the bench concluded: “Admittedly, fundamental rights may not be absolute. However, they require strong protection, thereby mandating a sensible necessity test, as the same will prevent the fundamental right becoming either absolute or to be diminished.”

The bench then explained how the authorities could apply the doctrine of proportionality before passing any order intended to restrict fundamental rights of individuals. In the first stage, the possible goal of such a measure must be determined, and it should be legitimate. Secondly, before settling on such a measure, the authorities must assess the existence of any alternative mechanism in furtherance of that goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure, the bench held. It added, “Only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances.” The bench was categorical that any such order should be supported by sufficient material and should be amenable to judicial review.

“The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation,” the bench further explained.

The bench clarified that a decision which curtails fundamental rights without appropriate justification will be classified as disproportionate. The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction, the bench added.

The judgment has been hailed by both the government and the opposition. Former Finance Minister P. Chidambaram considered it as a rebuff to the arrogant stance of the Centre, while senior advocate Kapil Sibal, who argued the case before the court on behalf of Ghulam Nabi Azad, hoped it would deter the government from imposing arbitrary curbs. Union Minister Prakash Javadekar, however, interpreted the judgment to mean that the administration could finally decide when to lift the curbs on the Internet, considering terror threat and danger to public safety. The legal battle to restore the fundamental right to freedom of expression in Kashmir, it appears, is only half-won.