A net verdict that falls short of expectations

If one were to merely consider its proclamation of the law, it is difficult to quibble with the ruling of the Supreme Court of India delivered on January 10, on the ongoing communications blockade in the Kashmir Valley. Shorn of its facts, the judgment, in Anuradha Bhasin v. Union of India, reads like a majestic charter of liberties. Its interpretation of the fundamental rights governing the freedom of speech, assembly, and movement is well-nigh perfect. The Court has read the limitations on these rights narrowly and has made it clear that any restrictions placed on the Internet, among other things, must meet a test of proportionality.

The reality and scant relief

The judgment certainly drives the basic canon on civil liberties forward. But judicial review, properly understood, entails more than a mere declaration of the law; it involves the application of law to facts. As a recent video report by the online magazine, Quint, shows us, after the resumption of train services between Srinagar and Banihal, on November 17 last year, people from the Kashmir Valley have had to travel no less than 110 km on what has now been dubbed the “Internet Express” to access a few minutes on the web. Performing the most basic tasks, from filing Goods and Services Tax returns and submitting licence applications and scholarship forms to checking examination results, has required many of them to undertake this journey. But even then, given the multitude of people thronging the cyber cafés in Banihal, most have had to shuttle back to their homes disappointed. To them, the Court, in Anuradha Bhasin, offers no meaningful relief.

Opacity in orders

The case itself arose out of the Union government’s decision to dilute Article 370 of the Constitution, through which the State of Jammu and Kashmir (J&K) had experienced elements of administrative autonomy. Parallelly, the government imposed a series of restraints on the region. It not only issued orders under Section 144 of the Code of Criminal Procedure inflicting grave restrictions on people’s movement, but it also imposed an indiscriminate shutdown of the Internet by invoking provisions of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 [Suspension Rules]. None of these orders was, however, made public. And many of them, especially the blockade placed on the Internet in the Kashmir Valley, continue unabated, even though more than five months have lapsed since these measures were first imposed.

In its opinion, written by Justice N.V. Ramana, the Supreme Court has unequivocally rejected the suggestions made by the state that it could keep the orders imposing the restrictions secret. The right to freedom of speech and expression, contained in Article 19(1)(a) of the Constitution, the Bench held, implicitly also includes a mandate to a right to information. What is more, invoking Lon L. Fuller’s famous quip — that “there can be no greater legal monstrosity than a secret statute” — the Court concluded that, in a democracy, there exists both a normative and a natural expectation that orders such as these will be made public.

This finding, when viewed in conjunction with the Court’s decision on access to the Internet, offers, in theory, a promising path ahead. The government’s argument that past judgments relating to the infringement of a newspaper’s right to freedom of speech were inapplicable to constraints placed on the use of the Internet were dismissed. No doubt, in doing so, the Court drew a facile distinction between the Internet as a “tool” on the one hand, and the expression of free speech through the means of the Internet on the other. But this, as its other findings shows us, is merely a matter of semantics.

Issue of circumstances

For, in the judges’ belief, the right to freedom of speech and expression includes within its ambit the freedom to disseminate and receive information through any means possible, including through the Internet. Additionally, the Court also recognised that the Internet today is critical to the conduct of commerce. Therefore, any restriction on the web will necessarily impinge on the right under Article 19(1)(g), “to carry on any occupation, trade or business”.

Now, none of this means that no restrictions can ever be placed on the Internet. The real question is this: under what circumstances would a limitation made on accessing the web be constitutionally justifiable? In answering this question, the Court restated the law with special brio. It found, as in “Lord Diplock’s aphorism”, that “you must not use a steam hammer to crack a nut, if a nutcracker would do.” Or, in other words, that any restraint made on a fundamental freedom must be necessary and proportionate to the goal that it seeks to achieve.

This notion of a doctrine of proportionality can be traced back to the administrative law of Prussia at the end of the 19th century. There, when the police invoked a power, which allowed it to restrict liberty as was “necessary for the maintenance of public order”, the Prussian Supreme Administrative Court held that it had to examine whether the measures adopted by the police surpassed in its intensity what was considered necessary for fulfilling the intended objective.

Need for scrutiny

In its present form in India, as held in Anuradha Bhasin, the doctrine demands scrutiny at various levels. First, it requires the state to show the Court that the basic aim that the restriction seeks to achieve is legitimate; second, the state must demonstrate that it has chosen the “least restrictive” measure possible to achieve its purported objective; and third the state must establish that there exists a rational nexus between the limitation imposed and its purported aim. Therefore, the basic nub of the test is to confirm that the government in pursuit of a legitimate aim has treated people’s fundamental rights with the greatest care and attention possible.

This crystallising of the requirements of proportionality will undoubtedly be valuable in future cases. But ultimately the dispute in Anuradha Bhasin concerned Kashmir. And, here, while recognising that an interminable blocking of the Internet will violate the law, the Court still does not hold the shutdown illegal. It is unclear, the judgment said, what orders are still in force. Moreover, there remains, it added, an “apprehension of likelihood raised in relation to the possibility of public order situations”. This being the case, the Court relegated the review back to the realm of the executive, by directing a committee constituted under the Suspension Rules to periodically examine the orders blocking access to the Internet.

Following this judgment, the J&K administration has issued a brief three-page order reviewing its ongoing restrictions. But, this order, which retains the existing ban on mobile data in the Kashmir Valley, while ordering the establishment of Internet kiosks to allow people to access “white-listed” government and banking websites, neither shows us why these are the least restrictive measures available nor demonstrates whether any other alternatives were so much as considered by the government.

No doubt, it is possible that fresh petitions might assail these developments. But the government’s new order only compounds our feeling of perplexity at the judgment. The Latin maxim, Ubi Jus Ibi Remedium — that where there is a right there is a remedy — underpins Article 32 of the Constitution, which guarantees a liberty to move the Supreme Court when a fundamental right is violated. Here, the Court found that a ceaseless shutdown of the web would be unconstitutional, but it still failed to issue any directions quashing the blockade.

A belief in the rule of law stems, at least partly, from a juridical culture that holds the state responsible when it trenches on its constitutional limits. In Anuradha Bhasin, howsoever genuine and sonorous those legal principles it upholds might be, the Court’s ultimate conclusion is gravid with meaning: the law demands respect, but just not in this case; at least not just yet.

Suhrith Parthasarathy is an advocate practising at the Madras High Court

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