• THE SOCIETY FOR CONSTITUTIONAL LAW DISCUSSION

Internet Restrictions in Jammu and Kashmir: Continuing Constitutional Abdication





Introduction

Almost a year has passed since the restriction on internet access in Jammu & Kashmir (J&K) was placed under the Temporary Suspension of Telecom Services Rules, 2017 (Suspension Rules), which ironically is temporary. Accordingly, the question of Constitutionality of the suspension order passed on 4th August 2019, came up before the Supreme Court in the case of AnuradhaBhasin v. Union of India.[1] Although the Apex Court acknowledged that expressing opinions through the internet came under the ambit of Article 19 (1)(a)[2]and that indefinite imposition ofrestrictions on the internet was not right and went against the principle of proportionality, it failed to adjudicate upon the constitutionality of orders passed under the Suspension Rules. Instead, the Court directed the review committee under Rule 2(5) of the Rules to conduct a periodic review of seven days in place of a single review. It is pertinent to note that how the deference to the executive on testing the constitutionality of the ‘executive’ orders was accommodated, considering the substantial temporal leeway of 5 months at the disposal of the executive before the case was finally heard by the Supreme Court. It could be argued that the decision by the Court was merely deferral, providing the government with mere compliance discretion before delving into the (un)constitutionality of order vide Suspension Rules.

Such deferral notion is negated by the Supreme Court’s order in FMP v. UT of Jammu and Kashmir and anr.[3] (FMP), in which the restriction on cellular internet speed was challenged amidst the COVID-19 Fiasco. Finding resonance with AnuradhaBhasin, the Court constituted a Special Committee to examine the hitherto notions of proportionality vis-à-vis perpetual restriction on 4G Internet in J&K. In effect, the people will have to rely upon the good faith and zealous reading of the judgment by the said committee composed to conductthe review.

Hence, it becomes imperative for us to examine (i) the case for proportionality of the measures and its interplay with (ii) abdication of constitutional duty by the Supreme Court.


Proportionality in action: Validity of Suspension Orders

From the very dawn of the Indian Constitution, the Supreme Court of India has been of the view that any measure brought about by the government to restrict fundamental rights, should bear a proportional relationship with the right itself.[4]

Until recently, this view of the Indian judiciary has been restrictive. In other words, the doctrine of proportionality used in India had not adopted the German model of the four-pronged analysis[5], which requires nuanced chronological scrutiny, in entirety. It was only recently in the Modern Dental College and Research Centre v State of Madhya Pradesh [6](MDCRC), the Court has begun applying proportionality in its four-part doctrinal test as a standard for reviewing rights-limitations in India.

In Anuradha Bhasin v Union of India, the Court reiterated the idea of the proportionality test as illustrated in MCDRC, which is a revamped model of existing one applied by the German Federal Constitutional Court.

The aforesaid doctrine lays down a four-pronged test wherein, first, it has to be analysed as to whether the measure restricting the rights serves a legitimate goal, then it has to be analysed whether the measure is a suitable means of furthering this goal (the rational connection stage), next it has to be assessed whether there existed an equally effective but lesser restrictive alternative remedy (the necessity test) and at last, it should be analysed if such a measure had a disproportionate impact on the right­holder (balancing stage). One of the salient features of the German test is the balancing stage, the ideals of which have beautifully been captured by Lord Diplock's aphorism 'you must not use a steam-hammer to crack a nut if a nutcracker would do?' [7] It is also important to note that the doctrine of Proportionality expounded by Justice Sikri in the Modern Dental College v State of Madhya Pradesh Case was premised and closely resembled this doctrine.

When we look at the 4G Internet Ban predicament from the proportionality spectacle that the jurisprudence in these cases dictates, it is found that there is constitutional discrepancies. The state’s directive to enforce an internet blackout fails at least 3 of the 4 parameters of the 4-pronged test.

Firstly, under the rational connection test, while the government said that the internet blackout was to ensure that terrorist activities and law and order problems can be prevented, as mentioned above, there is a stockpile of evidence to prove that this theory does not hold much weight. There appears to be no rational nexus in the state’s argument of a link between terrorism and high-speed internet access as there were several encounters between the armed forces and the militants even though the internet shutdown has been in place for almost a year now.

Secondly, the alternative remedy test, to see whether there existed a less restrictive measure to achieve the said goal. While the government pleaded that this was, in fact, the least restrictive measure there are several things that it could have done that have been done by governments worldwide to ensure a less restrictive policy.[8]For instance, the State capacity measure(s) such as building adequate intelligence mechanism can be less restrictive as compared to trammelling down the liberty of masses.

Thirdly and most importantly, the balance test to see if the impact on the rights holders was disproportionate. The impact has been disastrous[9], inter alia, with loss of lives due to lack of connectivityin times of COVID -19 crisis, large scale losses in business enterprises, and hindrance of education of the youth.

Judicial Avoidance: Ghosts of the ADM Jabalpur

It has been nearly 45 years since the gloomy spectre of ADM Jabalpur v. Shivkant Shukla[10] loomed large on the spirit of the rule of law. The decision in ADM Jabalpur, widely accepted as ‘darkest moment’ in judicial history, is essentially criticised for establishing the culture of authority[11], for it manifested executive’s prerogative to suspend constitutional remedies in times of emergency. Supreme Court justified the substantial leeway to the executive on the pretext of “Saluspopuliest supreme lex” i.e. presumption of executive’s good faith. Necessarily, we must delve into Justice H.R. Khanna’s dissent reflecting the notion of “Culture of Justification”, which has found affirmation in various Supreme Court’s decisions.

Khanna J. observed that,

“The question is not whether there can be a curtailment of personal liberty when there is a threat to the security of the State. I have no doubt that there can be such curtailment, even on an extensive scale, in the face of such a threat. The question is whether the laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such a threat.”

He also noted that Article 226[12](akin to Article 32) bestows the constitutional duty upon the High Courts to issue congruous writs lest the encroachment of Fundamental Rights by the executive.

This, barring suspension vide Article 32(4)[13], calls for the duty of the Supreme Court to enforce the Fundamental Rights, as remarked by Justice Khanna. Such acclaimed dissent becomes relevant for the constitutional abdication by the Supreme Court in a slew of judgment(s)/order(s) passed vis-à-vis 4G Ban.

While the Constitutional Abdication in Anuradha Bhasin vis-à-vis proportionality of the suspension orders has been discussed heretofore, it brings us to the continuing act of such evasion in FMP v. Union of India (FMP). In FMP, the Court was posed the question concerning internet speed restriction. It went onto opine that:

“It must be noted that the authorities have been taking steps towards easing of internet restrictions taking into account the prevailing circumstances. This can be seen from the fact that initially only whitelisted websites were allowed, before internet access to all websites was provided on broadband, and finally to postpaid and verified prepaid mobile users as well, although at 2G speeds.”

It is to be noted that at the time of the ongoing pandemic, for the Court to justify such deference by holding that certain restorative measures such as access to ‘selective’ websites or 2G internet are already in place is highly uncalled for, inter alia, two reasons. (i) There is a thin line between the accessibility and efficacy of the internet in digital times.[14] (ii) In these unprecedented times of COVID, better efficacy (4G) is desirable for better accessibility. For instance, the hospital(s) might require a foremost internet connection to co-ordinate and treat subjects accordingly. However, such considerations were not taken into account while deferring the constitutional responsibility to the executive in succession.

Coming back to the spirit of Article 32 in juxtaposition with Justice Khanna’s dissent, the perusal of the spirit of Article 32 becomes imperative accordingly. Article 32(1) of Indian Constitution states that:

“The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”

It can be inferred from the language how it imposes the duty upon the Supreme Court to enforce the rights under Part III of the Constitution. The duty under Article 32 is part of the basic structure[15], which means the remedial nature of Article 32 cannot be suspended during such a state of exception that the Court’s decision tends to suggest. Corollary to this, a perusal of slew of decision(s) by the Supreme Court is evident as to how the Court has abdicated this duty, providing the executive with a leeway to test the constitutionality of such orders, including the judicial ideals such as proportionality. The Supreme Court’s reluctance to enforce the rights under Part III puts the notion of transformative constitutionalism propounded in recent years on a backburner.

Accordingly, there has been a remarkable shift in Indian jurisprudence from the “culture of authority” to “culture of justification”.[16] To reflect upon the transformative constitutionalism, Chandrachud J., in Kalpana Mehta[17], opined that:

“The most important feature of Sachs’ (South African Judge) vision relevant to our Constitution is that Indian society must move “from the culture of authority and submission to the law to one of justification and rights under the law”

As EienneMureinek notes, while describing the “culture of justification”,

“The Constitution must lead to a culture of justification –a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command.” [18]

In other words, the Culture of justification requires substantive justification for the state’s actions, requiring the notion of proportionality and rationality to play a pivotal role accordingly. This “culture of justification”, as Bhatia writes, is reflective of Justice Khanna’s dissent. [19]It is the sovereign claims below the belt which Constitutional Court fails to question while adjudicating the rights at stake, which reflects the dishonourable spirit of ADM Jabalpur, embracing the Culture of Authority.


Conclusion

The National Security-Rights conundrum of the Supreme Court continues amidst the substantive rights-oriented jurisprudence. The phrase “one step forward, two steps back” can best describe the adjudication of the rights by the Supreme Court, in the light of continuous constitutional evasion. The Supreme Court, in its judgments, expresses its inclination toward striking the balance between security and liberty but at the same time, fails to examine whether such balance has been struck through government’s orders or not. The Apex Court’s foregoing of its responsibility through the justification “compelling circumstances of terrorism” testifies “culture of authority” the Court purports in state of exception. Through its impressive ‘obiter’ but cursory ‘ratio’, the Supreme Court has forsaken the continuing plight of people in the thick of Internet restrictions in Jammu and Kashmir.


This Article is written by Utkarsh Vats and Shivang Berry of National Law Institute University, Bhopal

[1]Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 [2]The Constitution of India, 1950, Art. 19(1)(a) [3]Foundation for Media Professionals v. Union of India, (2020) SCC OnLine SC 453 [4]Chintaman Rao v State of MP, AIR 1951 SC 118 [5] Yutaka ARAI-Takahashi, Proportionality – A German approach, 19 Amicus Curiae (July 1999) [6]Modern Dental College and Research Centre v State of Madhya Pradesh (2016) 7 SCC 353 [7]R v. Goldsmith 1983 1 WLR 151, p. 155 [8]Clément Lesur, from a Discussion on Internet Shutdown by Medianama, December 6,2016, Available at https://www.medianama.com/2017/06/223-alternatives-to-internet-shutdowns/ [9] Hannah Ellis-Petersen, ‘Many lives have been lost’: five-month internet blackout plunges Kashmir into crisis, The Guardian (International Edition), January 5, 2020 [10]ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC 521 [11]Gautam Bhatia, From a Culture of Authority to a Culture of Justification: The Meaning of Overruling ADM Jabalpur, 17 January, 2018, available at https://www.livelaw.in/culture-authority-culture-justification-meaning-overruling-adm-jabalpur/?from-login=70205 [12]The Constitution of India, 1950, Art. 226 [13]The Constitution of India, 1950, Art. 32(4) [14]ChintanChandrachud, SC’s decision not to decide on validity of restrictions in Kashmir is not just deferral, it is abdication, 16 January, 2020, available at https://indianexpress.com/article/opinion/columns/abdication-not-deferral-jammu-kashmir-communication-lockdown-6218567/ [15]Fertilizer Corporation Kamgar v. Union Of India AIR 1981 SC 344 [16]Government of NCT of Delhi v Union of India (2018) 8 SCC 501 [17]Kalpana Mehta v Union of India (2018) 7 SCC 1 [18]Kai Moller, Justifying the Culture of Justification 19(LSE Law, Society and Economy Working Papers, 2018) [19]Bhatia, supra note 10.

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