The Supreme Court on Friday ordered the government to “forthwith” review any existing orders that restrict basic rights and free movement in Jammu and Kashmir.
The court upheld the freedoms of free speech, expression and trade or business on the Internet as fundamental rights to be constitutionally protected. It, however, refused to express any views on whether the very access to Internet is a fundamental right or not.
The top court directed the government to review orders suspending Internet services in the erstwhile State instantly. Any order suspending Internet found to violate the law should be revoked at once, it ordered.
It further instructed the government to consider restoring government websites, localised/limited e-banking facilities, hospitals services and other essential services in areas in the Union Territory, where it was otherwise not thinking to do so immediately.
Ripping into the veil of secrecy shrouding the months’ long restrictions imposed across J&K, a three-judge Bench led by Justice N.V. Ramana on Friday made it mandatory for the government to publish each and every one of its orders that crippled the fundamental freedoms of over seven million Kashmiri people, including the suspension of the telecom and Internet services in the Valley since August 5 following the abrogation of special status to the erstwhile State under Article 370.
‘Publish orders’
Publication of these orders would now enable affected persons to challenge their legality in the Jammu and Kashmir High Court or before any other appropriate forum.
Justice Ramana, who wrote the verdict, said the court had no intention to delve into the political propriety of what the government did in J&K. “Democratic forces” would be the judge of that. The court said it merely sought to balance citizens' liberty and their security.
Though liberty and security were often portrayed to be at loggerheads, the court said, the government cannot recourse to blanket use of the “power under Section 144 CrPC [for issuing restrictions] as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights”.
Repetitive orders under Section 144 CrPC was an abuse of power, Justice Ramana observed.
Raising the freedom of free speech and expression on the Internet as a fundamental right under Article 19(1)(a) of the Constitution, the court said the State cannot cite the extensive reach and impact of the Internet as a medium in order to restrict this right.
“Freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible,” Justice Ramana said.
Petitioners like Kashmir Times editor Anuradha Bhasin and senior Congress leader Ghulam Nabi Azad had said the government's shutdown of Internet and telecom services had cut off Kashmir from the rest of the world.
Holding trade, occupation or commerce dependent on the Internet as a fundamental right under Article 19(1)(g), the court said that in a globalised Indian economy, right of trade through Internet fostered consumerism and availability of choice. The past months, according to the petitioners, had seen small businesses which banked on the Internet fail in the Valley, leaving many in dire straits. Even medical care seems to have suffered during the lockdown.
“Suspending Internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services [Public Emergency or Public Service] Rules, 2017. Suspension could be utilised for temporary duration only,” the court held. A "complete and broad" suspension of telecom and Internet services should be resorted to only as a drastic measure in an "unavoidable" situation.
The court pointed out that the government was able to continue with the suspension of Internet services because the 2017 Rules did not define word “temporary”. No time-limit was prescribed in the Rules. The court asked the legislature to repair this lacuna. Till then, any order of Internet suspension under the Rules would be reviewed within a week of its issuance.
The court rejected the government's reluctance to produce all its orders restricting free movement and communication. The government had initially claimed privilege only to later hand over a few sample orders to the court.
“The State should take a proactive approach in ensuring that all the relevant orders are placed before the court, unless there is some specific ground of privilege or countervailing public interest to be balanced, which must be specifically claimed by the State on affidavit,” the judgment held.
Restrictions are to be imposed in an emergency. "The restriction must be proportionate to the concern," the court said. The objective of a restriction must be legitimate rather than cavalier.
Authorities must necessarily consider an alternative and least restrictive mechanism before opting to restrict rights. Every decision to impose restriction should be backed by sufficient material and amenable to judicial review.
