Supreme Court lets the Govt off the hook in Kashmir but lays down the red line for future

Ruling on a batch of petitions challenging sweeping restrictions in Kashmir, filed among others by Kashmir Times editor Anuradha Bhasin and former J&K CM Ghulam Nabi Azad, the Supreme Court observed that restrictions under section 144 had to be limited to particular areas and in the face of imminent threats. It also ruled that access to the Internet was a fundamental right and orders shutting down the Internet or imposition of section 144 must be made public and cite reasons.

The ruling by a Supreme Court bench headed by Justice Ramanna on Friday to petitions challenging sweeping restrictions in Kashmir since August 5, 2019, evoked mixed reactions from legal experts.

While the court laid down several broad principles, it did not rule on the validity of the Internet shutdown or the imposition of Section 144 throughout the Valley, said lawyer and Constitutional expert, Gautam Bhatia.

The Bench, Bhatia pointed out, took the plea that it was not in a position to do a judicial review because all the Internet shutdown orders had not been placed before it. It was not only the state’s responsibility to place the orders before the court but it had been directed to do so by the court.

Since the court had concluded that people’s right to access to the Internet, to get information and carry out trade and commerce through the Internet was a fundamental right, the court should have declared the shutdown illegal and ordered the Internet services to be restored, he argued.

But instead, the court directed the Government to get the Review Committee set up under Telecom Suspension Rules to conduct a weekly review. It ordered that all the Internet shutdown orders should be reviewed within a week and all the shutdown orders published.

Other legal experts also felt that the failure of the state to produce shutdown orders despite the court’s direction indicated that the state had not followed the law. Hence the court should have placed people’s rights over the state’s restrictions and restored the rights of the people.

But having said that, legal experts felt the ruling is a landmark in view of the principles it has laid down. With the state indiscriminately shutting down the Internet in several parts of the country and imposing blanket restrictions under Section 144 over a large area and for indefinite periods in the wake of protests against the CAA-NPR and NRC, the principles laid down by the court on Friday would help adjudicate the challenges pending before several High Courts against the restrictions.

• The Supreme Court laid down that the state must make public orders for Internet shutdown and imposition of section 144.
• The court rejected the state’s contention that since it had taken steps in the interests of national security and to counter ‘terrorism’, the courts should not intervene.

“ In other words, the State – and its lawyers – asked the Court to effectively hold that Kashmir was in a state of permanent Emergency, where fundamental rights stood suspended and at the mercy of the State, even though there had been no declaration of an Emergency at any point,” underscored Bhatia.

The Court made it clear that orders providing legal cover to the imposition of Section 144 CrPC and the internet shut-down had to be made public, so that citizens could know – and, if they chose – challenge the bases on which their fundamental rights were being restricted. If the State wanted to withhold any part of such orders because of national security concerns, it would have to justify that, on a case to case basis.

The Supreme Court also reiterated that restrictions upon fundamental rights had to be consistent with the proportionality standard. In particular, as part of the proportionality standard, the State had to select the least intrusive measure to achieve its legitimate goals.

The Court also made these following observations.

• The right to use the internet as a medium for free speech and expression and for trade and commerce was protected under Article 19(1)(a) of the Constitution;
• Article 19(2) allowed for the restriction of “abrasive statement(s) with imminent threat … if the same impinges upon the sovereignty and integrity of India…”
• A perpetual internet shutdown would fail the test of proportionality.

The State’s argument that it couldn’t selectively block websites because of a lack of technology could not be accepted.