If enunciating the law and laying down norms for the exercise of executive power were the only functions of a constitutional court, the Supreme Court’s verdict on the prolonged lockdown in Jammu and Kashmir (J&K) is indeed admirable. However, the apex court is also a court of justice, one duty-bound to enforce fundamental rights. It cannot limit itself to opinions on the extent to which those rights can be restricted. It has to give effect to the principles it enunciates and rule whether the state violated the fundamental rights of its citizens. The disappointing aspect of the verdict is the court’s failure to give a ruling on the validity of the government’s actions. It fails to hold the government to account for the manner in which it exercised its powers. It states categorically that an indefinite ban on the Internet is impermissible, but fails to direct the restoration of services. When it says Section 144 of the Code of Criminal Procedure “cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights”, it makes a comment worthy of being treasured in these times of frequent resort to that section. Yet, the court does not go beyond directing the authorities to review all their orders and restrictions forthwith.
There are indeed valuable takeaways from the judgment. A key holding is that the use of the Internet as a medium for free speech as well as for trade and commerce is constitutionally protected. It also lays down that any reasonable restriction on fundamental rights, be it an Internet ban or a Section 144 order, will have to survive the test of proportionality, that is, the restriction should be proportionate to the necessity for such a measure. At the same time, it cautions against the “excessive utility” of the proportionality doctrine in matters of national security. Of great value to future challenges to executive action is the principle that there can be no ‘secret orders’. The government is bound to publish all orders it passes regarding such restrictions so that they can be challenged in a court of law. It is here that the verdict acquires another unusual character. Having rejected the government’s stand that it could not produce all the orders on the restrictions imposed since August 4, 2019, the court fails to strike them down on that ground. After all, it concurrently says every order imposing a restriction should state the reason, the exigency that necessitated it and the features that make it clear that it is the least intrusive measure. The absence of such order in the public domain is evidence that the state failed to demonstrate its necessity. It is a sign of the success of the ‘national security’ narrative that undergirds the government’s position on J&K that an apex court judgment in a fundamental rights case appears to have the character of an advisory opinion.
