CONSTITUTIONAL VALIDITY OF INTERNET SHUTDOWN IN JAMMU AND KASHMIR

Reading time : 5 minutes

Introduction

Kashmir, a disputed Himalayan area bordering India to the south, Pakistan to the west, and China to the east, has been a source of strife since India’s independence. However, the frequent shutdown of the internet in this region has robbed a large portion of the population of the benefits of internet access. For the past three years, India has had by far the highest number of internet shutdowns of any country across the globe. The shutdowns have largely occurred in places where citizens have been protesting the government. The internet has become a democratising force in the midst of all of this. Kashmiris have resisted state narratives and developed their own archives focused on commemorating their lived experiences through videos and other documents, which they commonly publish on social media. As a result, the internet blackouts in Jammu and Kashmir has not only limited freedom of expression and had a social, economic, and cultural impact, but they have also hampered the thorough recording of events, directly violating the Indian government’s obligation to memory. One can only imagine how many stories were lost due to internet outages in Jammu and Kashmir and other recent upheavals, such as major protests by farmers against new agricultural policies and minority groups opposing the citizenship law amendments. Apart from this, students are deprived access to important educational materials, hospitals and emergency services face administrative disasters, and local businesses can collapse as a result of the loss of network infrastructure.

Constitutionalal Validity of Internet Shutdown

India is the world’s second perpetrator of internet consumer rights. More than half of the reported power outages have occurred in the state of Jammu and Kashmir alone. Jammu and Kashmir was the first state to witness an internet shutdowns in 2013, just before the republic day, which happened again just before the independence day. Long internet blackouts in Jammu and Kashmir have grave repercussions for India’s own right to freedom of speech and protection of rights, as well as the country’s international human rights commitments on the internet.

Jammu and Kashmir has had 180 partial or complete internet shutdowns in the last seven years. These staggering figures suggest that communication blockades are widespread in Kashmir, but perhaps even Kashmiris did not expect to be facing the world’s longest internet blackout ever enforced by a democratic government. After the Indian government abrogated Article 370 of the Constitution, Jammu and Kashmir experienced the longest internet shutdown in India’s history, lasting 7 months from 4 August 2019 to 4 March 2020. The official court discourse emphasised the possibility that greater internet connections could be used to support terrorism. The petitioners claimed that the two had no reasonable correlation. It was also mentioned that most acts of terrorism in the state were carried out in locations where there was no internet connection to begin with.

The internet shutdown hasn’t stopped since then. The government recently put restrictions on movement and communication at midnight, shortly after news of Hurriyat leader Geelani’s death spread. Residents of the Kashmir Valley awoke to find the next morning to an internet communication blackout and movement restrictions enforced by the armed forces, which were lifted after four days. Aside from inflicting suffering to others, it is an inconvenience for the journalists who are denied access to information and also, a violation of Supreme Court guidelines. The government has justified these actions by citing law and order concerns, yet there is little, if any, evidence to show a link between internet connectivity and violence or other harmful activities. Instead, evidence suggests that internet shutdowns make it more difficult to research and expose human rights breaches and other offences when used in conjunction with governmental force. They also impede residents from accessing information, connecting with healthcare system, learning materials, and welfare services, and remaining in contact with loved ones in an increasingly interconnected world. It is no surprise that the internet has evolved into an indispensable instrument for democratic participation. Thus, people are deprived of right to life in a way as it not only protects the right to health care and sustenance but also, liberty in todays world.

The measures shutting down the Internet have rarely any legal standing. The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, are actively used to shut down the Internet. When the Executive authorises the suspension of the Internet, the Telecom Rules compel the Executive to submit a reasonable order, among other things. The shutdown orders, however, were not publicly disclosed in this case. They were only disclosed to the court during the proceedings, and that too reluctantly. However, a review of the orders that has been made public, according to the petitioners, reveals a complete lack of application of mind. To give an example, an order was issued with the topic “Shutdown of Broadband Services” to prolong an order with the subject “Shutdown of Land Line Services.” Furthermore, while the Home Secretary (Government of India) or the Home Secretary of the state government concerned is the competent authority to issue orders suspending Internet access under the Telecom Rules, the petitioner claims that the orders were issued by the Inspector General of Police in this case. Notwithstanding the Telecom Rules’ specific demand that orders suspending the Internet be issued for adequately set out justifications, the orders themselves were bald and devoid of any explanations. [1] The orders that have been issued to shut down the Internet are not in support of any legitimate government aim.

The government asserts that it believes the Internet will be abused by anti-national groups, resulting in a breakdown of law and order. Neither of the phrases used, however, satisfies the criteria of Article 19(2) of the Constitution. The Supreme Court has frequently held that the term “law and order” is not included in the definition of “public order,” as stipulated by Article 19(2). “The line between ‘public order’ and ‘law and order’ is a fine one, but nonetheless clear,” the court said in the latter case. A restriction imposed with law and order in mind would be the least intrusive into protected freedom, whereas a restriction imposed with public order in mind might qualify for a higher degree of restriction because public order is a topic of much greater national significance. As explained in the early section of this opinion, the state’s security is essential, and the state can impose restrictions on freedom that are relatively more harsh than those imposed in relation to maintaining ‘public order’ and ‘law and order.’ Regardless of how rigorous these limits are, they must pass the’reasonability’ test. The State would have to persuade the Court that the imposition of such restrictions is not only in the interest of the State’s security, but also within the schema of Articles 19(2) and 19(3) of the Constitution. In this case, the orders imposing the restrictions on the Internet refer to “law and order” without explaining how “public order” is lawfully needed. Furthermore, as the petitioners have argued, the term “anti-national” is simply undefinable and does not fall within any of the Constitution’s precisely defined reasons set out in Article 19(2).

The shutdown orders are not reasonably tied to the achievement of the ostensible goal, which is the prevention of violence. While the government has often asserted that scoundrels and anti-national groups will exploit the Internet, it has offered no clear evidence that such misappropriation is a real and true threat. Studies show that a shutdown of the Internet causes anxiety and unease, increasing the risk of violent protests and demonstrations. As a result, the state has simply failed to show a coherent and reasonable link between the restrictions enforced and the intended goal of the orders.

Finally, the orders fail to pass the requirement test, indicating that there was a strong need for these measures and that the intended goal could not have been accomplished through less restricted and intrusive means. When even according to the state’s own reasons, only a small percentage of the population is likely to conduct violence, and when the vast majority of the population poses no threat to public order, it’s difficult to see how a complete shutdown of the Internet can be justified. If the goal is to avoid incitement to violence, the state may easily restrict specific websites on its own. The fact that a blanket Internet blockage are placed for months in Jammu and Kashmir demonstrates that the government hasn’t even tried to guarantee that it uses the least restrictive tactics feasible to prevent violence in the region.

Freedom of Internet as a Fundamental Right

The Indian Supreme Court has now acknowledged the freedom to access the internet as an auxiliary right guaranteed by the Indian Constitution. This is a view in which internet access is valued as a means for the expression of other rights, such as the right to freedom of expression and the right to perform any profession or trade. In the light of a legitimate concern for saving information and history during common distress like that unfurling in Jammu and Kashmir, this security should be reinforced to include a requirement to retain internet connection or at least not impair it in order to guarantee the right of the responsibility to memory during civil turmoil like that occurring in Jammu and Kashmir.

The continued ban on social media on the broad and bogus grounds of “rumour mongering” is unfair, as many have pointed out. There is no proof that internet shutdowns combat “rumour mongering,” in fact, evidence shows in the opposite direction. The constitutional case against internet restrictions is still being argued, and will be in the future as well. Jammu and kashmir’s activities following the Supreme Court’s decision effectively contradict the Court’s conclusions, as well as revealing serious internal discrepancies between what the government asserts and what it really does. The Supreme Court made it very clear that internet accessibility is a fundamental right, and that any restrictions must pass the proportionality test. Whitelisting reverses this notion, thereby making the government’s authority to restrict internet access a fundamental right, with the burden of proof falling on the people to show why they should be permitted to access certain areas of the internet. This reversal of the citizen State relationship is unlawful, and it is hoped that it will be recognised as such.

In the case of Faheema Sharin v. State of Kerala, the Kerala High Court recently handed down a decision. The court acknowledged that access to the Internet is now necessary because it provides people with access to not only information but also a variety of other services. Although the internet has its own set of issues, there can be little doubt that it strengthens personal liberty by allowing people to choose what they want to read, see, and hear, and, more importantly, by limiting the government’s ability to control a person’s private self, as the court found. The Kerala High Jury’s ruling that access to the Internet is a fundamental right is not just in line with worldwide trends, but also with India’s longstanding free speech precedent. After all, the Supreme Court recognised the instrumental value of speech in Sakal Papers v. Union of India in 1961, finding that access to the news and the media’s function in aiding the diffusion of information and knowledge had a direct part in the advancement of democracy. As a result, any Internet censorship would appear to be a violation of basic rights. As a result, for the government to impose an Internet limitation, sufficient grounds must be provided, and the measure must be conducted in a constitutionally sound manner.

The Supreme Court issued a significant decision on the internet blockade in Kashmir on January 10, 2020. The first thing that stands out about the decision is how concerned it is with constitutional rights in general. The decision contains highly valued concepts. There are three key concepts that the decision emphasises. The first is the importance of liberty, which cannot be overstated. It cannot be jeopardised. The second point is the necessity of knowing things or having access to knowledge, and how the internet is such a vital source of information in today’s environment. Since the internet is not only merely a method of obtaining information, making internet access a fundamental right is a ground-breaking decision. The final part, some of which echoes other famous 1980s decisions, is a judgement with a  slightly different connotation, but on the same subject, namely the execution of statutory authorities like Section 144.

“Freedom of access to the Internet is a fundamental right,” declared Supreme Court Justice N. V. Ramana. “We believe it is necessary to underline that a total and broad suspension of telecom services, whether Internet or otherwise, is a harsh action that should only be taken by the State if “necessary” and “unavoidable,” the court wrote in another part. The High Court held that the Web has become so focal today to our lives that it assumes an instrumental part in the acknowledgment of various established assurances. The admittance to data on the Web “works with immense freedoms for moderate and comprehensive instruction internationally, accordingly being a significant device to work with the advancement of the right to schooling.” Given the significance of instruction to one side to life and individual freedom under Article 21 and considering how significant the Web was in satisfying these guarantees, admittance to the web, the court held, should be considered all by itself as a key, basic right. Aside from this the court likewise perceived, that the Web establishes a mode for discourse as well as elevates a door to data. An option to get to the Web, along these lines, in the court’s perspective, must be viewed as a basic part of a resident’s all in all correct to the right to speak freely of discourse ensured under Article 19(1)(a) and must be limited on the grounds identified in Article 19(2). [2]

Conclusion

The right to internet access ought to be characterized extensively to fulfill guidelines of significant availability, which specify admittance to a cell phone, adequate information portions for sharing data, and a continuous 4G or quicker web association. Any state activity that compromises any of those guidelines ought to be arranged as a web closure and ought to be viewed as an infringement of rights like ability to speak freely, just as of obligation to memory. In Jammu and Kashmir, as in such countless different districts that are buried in struggle, the internet has demonstrated essential forgetting precise, thorough accounts of history. It has given a voice to minimized gatherings whose accounts may somehow be neglected to time. No administration should have the power to take that away from them. It is a basic right to human dignity and legal equality. This right must be exercised in the same way as any other fundamental right, subject to reasonable restrictions. 


[1] Gautam Bhatia, “The Kashmir Internet Ban: “Restoration”, White-Listing, and Proportionality” ICLP (2019).

[2] Japnam Bindra, Pretika Khanna, “SC verdict on access to internent seminal, progressive, balanced: Gopalan Subramanium” mint. (2020)

Author: SHIREEN, DR. B.R.AMBEDKAR NATIONAL LAW UNIVERSITY, RAI, SONIPAT

Editor: Kanishka VaishSenior Editor, LexLife India.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s