Judicial remedies for the Jammu and Kashmir net restrictions

POLITY/ RIGHTS/ GOVERNANCE

Topic: General Studies 1,2:

• Issues and challenges pertaining to the federal structure
• Government policies and interventions for development in various sectors and issues arising out of their design and implementation. 

Judicial remedies for the Jammu and Kashmir net restrictions

Context: One year of internet lockdown imposed in Jammu & Kashmir in the wake of abrogation of Article 370 on 5th August 2019.

Communication channels (Telephone and Internet) was highly restricted in Jammu & Kashmir since 5th Aug 2019, on the grounds of National Security and Law & order (to prevent rumours & chaos)

How has Pandemic increased the importance of internet?

• A large part of the realm of freedoms protected by the Constitution, ranging from carrying on a business, to obtaining education, health care, and information, have all moved online
• This has meant that it has become imperative for governments to improve access to the Internet for all

What are the impact of blocking internet access?

• Not in the spirit of Democracy: Internet shutdowns or slowdowns are an inherently overbroad restriction for it adversely affects millions of innocent civilians owing to the actions of a few

• Right to Freedom of speech & expression under Article 19(1)(a) is impacted as the medium to access information i.e. internet is blocked

• Right to carry on trade activities under Article 19(1)(g) is also negatively impacted with the restrictions placed on movement of people. 

• Economy of the region adversely affected as access to e-banking facilities blocked due to ban on internet. Internet shutdown around the world in 2019 has cost the global economy over $8 billion.

• Delivery of government welfare provisions affected in today’s age of e-governance and digitization of the process

• Healthcare provisions impacted especially where government schemes like Ayushman Bharat have adopted digital means for delivery process
• Restricts ability to Cope with Pandemic: It has become impossible for J&K people to adapt to the pandemic, by resorting, as the rest of India has, to online classes, working from home, tele-consults with doctors or even video calls with family.

What should be the framework to adjudicate such restrictive actions of government?

The Court in Anuradha Bhasin recognised the proportionality test as the framework. Under this, the government must provide a four-step justification. It has to show that 

1. The restrictions are in pursuance of a legitimate aim (in this case, national security), 
2. That they are suitable to achieving that aim, 
3. That there exist no less restrictive alternatives that would limit the right to a lesser extent, 
4. That the adverse impact of the restrictions are proportionate to their benefit. 

What has been the Judiciary’s reactions to such restrictions?

• Urgency Not Shown: Despite having heard two challenges to the restrictions since August 2019, the Supreme Court has remarkably not ruled on their validity. 

• In Jan 2020, in Anuradha Bhasin case, SC granted limited relief by directing the government to publish reasoned orders and review the restrictions every seven days
• In Foundation For Media Professionals case, SC set up an Executive Committee to review the 2G speed restrictions that had been imposed by the Executive
• In response to the Supreme Court of India’s stern approach in the recent hearing on August 7, the Central government has agreed to restore Internet in two districts on a trial basis.

Two arguments have been advanced to justify the Court’s deferential approach

• First, that such decisions are not based on objective factors that can be presented to and assessed by a judicial body, but are based on the “subjective satisfaction” of officers who possess exclusive knowledge of the situation on the ground.
• The second, and closely related, argument offered is that the Court does not have the competence to review matters of national security. 

Way Forward

• It is imperative that the Court fulfils its constitutional duty by examining and going over any further reasons given by the State with a fine toothcomb.
• Less restrictive alternatives cab be applied, some of these are
  • Permitting the use of 4G on verified post-paid SIMs
  • Blocking and intercepting specific numbers, websites or applications
  • Issuing takedown orders of content that incite violence
  • Limiting restrictions to particular areas for shorter durations

Connecting the dots:

• Sealed Cover Jurisprudence – Cases where such procedures were adopted
• Is Right to access internet a Fundamental right? What are the possible implications on the Indian Polity with such recognition of new right in the age of internet?