Kashmir communications blackout: How digital rights defenders read Supreme Court judgement
While the landmark apex court’s judgement falls short of expectations, it’s being seen as a step towards discouraging the government from arbitrary and indiscriminate use of communication restrictions in the name of maintaining law and order.
Over five months after Jammu and Kashmir was put under communications lockdown, the Supreme Court on Friday, January 10, called upon the Centre to publish all restrictive orders under Section 144 of the CrPC so that they can be challenged legally.
Since the law that deals with communications shutdowns— Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 issued under the Telegraph Act —does not provide for notification of the restrictive orders, the apex court has mandated that such orders must be made available to the public.
While the landmark apex court’s judgement falls short of expectations, it’s being seen as a step towards discouraging the government from arbitrary and indiscriminate use of communication restrictions across the country in the name of maintaining law and order. It lays down guidelines for communication restrictions for the government and stipulates legal recourse for the citizens.
The three-judge bench of Justices NV Ramana, BR Gavai and Subhash Reddy, while pronouncing the order directed the government that internet shutdown orders, particularly those which affect lives, liberty and property of people, must adhere to the principle of proportionality and must be temporary in nature.
The court judgement noted that complete suspension of services should be considered only if “necessary” and “unavoidable”. It also held that “law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society.”
“Suspension of free movement, internet and basic freedoms cannot be an arbitrary exercise of power,” said the court, emphasising that “mere expression of dissent or disagreement against a government decision cannot be reason for internet suspension.”
Even though the cell phone services and SMS have been restored, the internet shutdown in Jammu and Kashmir that continues for the last 159 days is said to be the longest in the world history. The restrictions were imposed on August 4, a day before erstwhile state was bifurcated into two Union Territories by the Modi government. The government had restored internet services in Kargil last month besides allowing limited access in hospitals in some parts of the erstwhile state.
According to the Delhi-based Software Freedom Law Centre (SFLC) — a legal services organisation, which tracks incidents of internet shutdowns in the country—there have been 381 shutdowns since 2012, 106 of them last year . “The Supreme Court has recognised that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected. This declaration would make it easier to challenge shutdown orders in future,” it maintained in a statement.
“The biggest obstacle in challenging shutdown orders in the past was the lack of transparency. Most of the applications under the RTI Act filed by SFLC.in for obtaining shutdown orders were rejected citing national security as a reason,” it stated, adding that “Publishing shutdown orders could enable citizens to approach High Courts to challenge these orders.”
How effective will the court observations will prove in the long run? “The direction to have reviews of suspension orders every seven days could place a check on long shutdowns. However, the fact that the review committee is also composed of members exclusively from the executive could make this a futile exercise,” SFLC maintained.
Other experts believe that the Supreme Court ruling would discourage the government from resorting to random and indiscriminate communications shutdowns. “Supreme Court’s Kashmir communication shutdown judgement is just the beginning of a long uphill campaign,” Internet Freedom Foundation (IFF) said in a statement, stressing that the judgement does provide a strong legal footing to challenge arbitrary use of the Telecom Suspension Rules all over India. “The judgement is only the first step and it will require continuous monitoring and follow up action to ensure the government complies with the progressive principles and procedural safeguards laid down by the court.”
“It provides a sound legal basis to challenge future communication shutdowns but it does little to address the harm already caused to Kashmiris in the last 158 days,” it said.
‘Access to internet not a fundamental right in itself’
While the court ruling held that internet is a medium to exercise fundamental rights but not a fundamental right itself, IFF maintained that following the top court’s order, “online speech will enjoy greater protection than online business activities.”
It further stated that the judgement categorically rejects the State’s claim that it needs to shut down the internet in its entirety because it does not have the technical means to block access to specific websites and applications.
IFF, the statement read, will be taking the following steps in the coming weeks
· Write to the government urging it to review the functioning of the Telecom Suspension Rules and conduct a public consultation since the Supreme Court has also noted that the Rules have gaps and need amendment.
· File regular RTIs to check if telecom suspension orders are being proactively published and periodically reviewed in accordance with the Supreme Court’s directions.
· Work with local petitioners if the government fails to review the orders for Kashmir within one week and support them in moving to courts to seek compliance with the Supreme Court’s directions.
Reacting to the court’s order, Kashmir Times executive editor, Anuradha Bhasin, who was one of the petitioners challenging communications lockdown in Jammu and Kashmir said, “The judgment upholds freedoms of citizens and makes the government accountable. It doesn’t give any immediate relief to the people of Jammu and Kashmir. But it certainly has given us some hope.”