Comment

Favouring public order over justice

A protest by Kashmiri journalists in November last year demanding restoration of Internet in the Valley.

A protest by Kashmiri journalists in November last year demanding restoration of Internet in the Valley.   | Photo Credit: Danish Ismail

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The Supreme Court’s order on the Internet shutdown in J&K was a statist expression of law

Last week, the Supreme Court gave its much-awaited judgment on the legality of the telecommunications and Internet shutdown orders in Jammu and Kashmir (J&K), in place for more than 160 days now. Given the centrality of the Internet in our lives and the fact that the preceding weeks had seen such shutdowns in Uttar Pradesh, Rajasthan, Madhya Pradesh and Delhi, the ruling was eagerly awaited across the country. However, in its language, structure and the relief granted, the verdict came across more as one premised on legal centrism than one advancing fundamental rights.

After acknowledging in the first paragraph that India is a “land of inherent contradictions”, the court immediately assumed the role of an acrobat which had to “strike a balance between the liberty and security concerns” rather than rule in favour of citizens’ rights. That said, it is important to understand that the scope of the constitutional challenge before the court was narrow by design. The petitioners, with considered and strategic thought, did not challenge the underlying power of the Central government to turn off telecommunications and Internet connectivity. The focus of their challenge was not the Telegraph Act and the Internet Suspension Rules that enabled the government to shut down the Internet, but squarely on the orders passed under these laws.

Reluctance to furnish orders

In this regard, the petitioners faced a challenge that is common in present times. The government had not made the shutdown orders publicly available. Pressed for disclosure, the Centre initially cited national security concerns and, only after persistent arguments over multiple hearings, filed some sample orders. To not even provide the Supreme Court a copy of such orders was an extreme position, but did not come entirely as a surprise. We have in the recent past seen such opacity, especially under former Chief Justice Ranjan Gogoi, clothed in what legal scholar Gautam Bhatia termed “sealed cover jurisprudence”. Ultimately, it came as a relief that, to some extent, ordinary legality and common sense prevailed. The apex court rejected the government’s secrecy claims and directed the publication of orders recognising that, without them, litigants would not be able to seek judicial remedy. However, eventually, it failed to judicially review the orders furnished in court and also permitted claims of privilege to prevent their disclosure.

Question of fundamental rights

The principal job of the court in such writ challenges is to review the administrative and executive action. In this case, the decision charted the link between fundamental rights and access to the Internet and sought to apply it when it came to prohibition in place in J&K. While doing so, the court rejected the government’s arguments emerging from extreme positions of national security. It applied the proportionality doctrine to reason that “complete blocking/prohibition perpetually cannot be accepted”. And while noting the issues pertaining to the Internet shutdown rules, the order directed the government to change them and placed a time limit of seven working days for periodic review.

These victories were incremental and certainly could not be termed as ‘wins’. They emerged amidst a cynical framing of rules by the executive and extreme, adversarial national security arguments to impair progressive constitutionalism. The judicial response followed clear precedents and did not fashion anything novel. For instance, on the surface, the directions for the right to access the Internet may seem to be a victory for the litigants. However, this was already a well-established position flowing from various previous verdicts such as the Section 66A decision in the Shreya Singhal case and administrative policies and orders such as National Telecom Policy and Net Neutrality Rules.

Even when it comes to the court’s direction to conduct a periodic review of such shutdowns every seven days, it needs to be noted that the review committee will lack independence and real power to overturn the initial Internet shutdown orders. The committee will be principally composed of bureaucrats and no independent members. Further, the findings and recommendations of such committees, as scholar Nakul Nayak has shown, will not be legally binding. As Mr. Nayak has noted, those wanting to be heard by the review committee will face several procedural obstacles. Ultimately, the judgment has left it to the government to decide on such shutdown orders under pre-existing constitutional principles.

 

The Supreme Court applied a limited rights doctrine and removed the anxiety among a section of the Indian public concerning drastic constitutional regression. Such mixed results can be understood by looking beyond the court to our present political environment. The verdict has come at a time when basic rights are being violated with impunity and public expectations for remedy from institutions are extremely low. And though the court may have rejected several contentions by the government, ultimately it seems to have accommodated the arguments of the executive branch on issues of national security.

An act of judicial centrism

The ruling may be termed as an act of judicial centrism. The court clutched on to the basic constitutional norms to maintain legality, while showing reluctance to expand upon rights. An end product of such a posture is that it may not extend the true spirit of our fundamental rights and would perpetuate a status quo. This was tangibly felt when the judgment shifted the legal review of the J&K shutdown orders — the principal question of determination — back to the government.

The court further avoided any comment on the legality of such orders given in the past, even those furnished by the government before it. Martin Luther King admonished this kind of centrism when he said that it was “more devoted to ‘order’ than to justice; [that] prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice”.

On the whole, the judgment was a statist expression of the law, neither conservative nor radical. For actual relief, petitioners will now need to approach the high courts, which will come at a huge cost to their time and the right to access the Internet. The legal doctrines laid down in this ruling may be beneficial; however, the more difficult task will be to obtain clear-headed pronouncements that actually declare the executive orders, such as those that led to the shutdown of Internet in J&K, to be illegal.

Today, “We the people” is not a mere phrase of our constitutional preamble but a call for action to Indians. They must encourage our institutions to shift from centrism to a progressive assertion of our fundamental rights.

Apar Gupta is a lawyer and executive director of the Internet Freedom Foundation, which assisted intervenors in this case

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Printable version | Jan 20, 2020 3:59:47 PM | https://www.thehindu.com/opinion/op-ed/favouring-public-order-over-justice/article30551737.ece

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