Internet Shutdowns & the Judgments

Relevance: Mains: G.S paper II: Polity: Governance

Context

The Supreme Court (SC) verdict on the petitions challenging the Government’s move to suspend internet services in Jammu and Kashmir.

Background

Following the abrogation of the special status of the erstwhile State of Jammu and Kashmir under Article 370, the government had suspended telecom and internet services in the valley.
The government claimed that the move was taken amid apprehensions that vested interests might misuse the internet-enabled social media platforms for instigating violence in the valley. The government had cited the extensive reach and impact of the internet as a medium in order to restrict it.
The government had defended its move for a blanket suspension of internet services in the valley citing the lack of technology to allow selective online access.
Given the importance of the internet in the current world, the shutdown in the valley has impacted the lives of the people and the economy of the valley.
Petitioners Anuradha Bhasin, editor of Kashmir Times and senior Congress leader Ghulam Nabi Azad had claimed that the government’s shutdown of internet and telecom services had cut off Kashmir from the rest of the world.
The move to impose internet suspension in the valley was challenged in the Supreme Court. A three-judge Bench of the Supreme Court, led by Justice N.V. Ramana, has come out with its verdict in the case.

Effects in Kashmir:

Issue of the right to freedom of expression:

The blackout of the internet impinges on the right to freedom of expression.
Given the fact that today, publishing a newspaper without access to the Internet is almost an impossible task, journalists have been hamstrung by the absence of the Internet.
Hence denial of access to the web poses a direct threat to the liberties of the press.

Economic Damage:

The shutdown has inflicted startling economic damage on the region. Even conservative estimations released by the Kashmir Chamber of Commerce and Industry show that the State’s economy has suffered a loss of no less than ₹15,000 crores since the dilution of Article 370 and the subsequent shutdown of communication channels.
A report shows that, with jobs already hard to come by in the region, there has been a staggering 80% drop in employment among start-ups in Kashmir that rely on the Internet.
The connectivity blockade applied on J&K is proving lethal to entrepreneurship, crippling a new generation that is running start-ups and promoting women’s employment.

Misuse of Section 144 of the Criminal Procedure Code:

Referring to the submissions by petitioners that the police were still restricting the movement of people during the day in Jammu and Kashmir, the court has called the state to follow due procedure, taking into consideration the rights of citizens, and pass only appropriate and need-based restrictive orders.
Section 144 of the Criminal Procedure Code (CrPC) of 1973 authorises the state to issue an order to prohibit the assembly of four or more people in an area. According to the law, every member of such ‘unlawful assembly’ can be booked for engaging in rioting.
Section 144 is imposed in urgent cases of nuisance or apprehended danger of some event that has the potential to cause trouble or damage to human life or property. Section 144 of CrPC generally prohibits public gathering.
The court by stating that repetitive and blanket orders under Section 144 CrPC were an abuse of power, has held that the government cannot take recourse to Section 144 CrPC as a tool to prevent the legitimate expression of opinion or grievance. Section 144 CrPC should also not be used to prevent the exercise of any legitimate democratic rights.
On the contention, whether Section 144 could be invoked against the public in general or against specific groups or persons, the court referred to the Madhu Limaye judgment that a general order could be passed if the number of persons was so large that a distinction could not be made without risk.

Concerns regarding the court’s verdict

Failure as a court of Justice:

The Court goes into long and elaborate discussions on the importance of free speech, the press, the internet, as a tool for expression, and the need for reasoned orders and procedure, among other things.
Yet, it draws “conclusions” that are contradictory and have little or no bearing on what the judgment discusses.

Failure to hold the state accountable:

The Court discusses why it is impermissible for the government to refuse to provide copies of the orders suspending the internet in J&K.
During the course of the hearing, the Solicitor General of India, arguing on behalf of the government, claimed that it was not possible to produce all the orders on the grounds of “privilege,” but was unable to show what law permitted such a claim.
Eventually, “sample orders” were produced after the claim of privilege was dropped.
It is a cardinal rule of evidence that a party in possession of a document must produce the same or the Court should draw an adverse conclusion against such a party.
When the government failed to produce the orders suspending the internet, the Court should have assumed that such orders did not exist, and the internet shutdown was therefore unlawful and was to be lifted immediately.
The Court does no such thing but ends its judgment with a plaintive plea to the government to at least publish the orders of internet suspension so that people can challenge it in court at some future date.

Lack of remedial actions:

Though the court states categorically, that an indefinite ban on the Internet is impermissible, it fails to direct the restoration of services.
The court though cautions against the misuse of Section 144 of the Code of Criminal Procedure, yet, it does not direct the authorities to review all their orders and restrictions immediately.
There are concerns being raised that the apex court in its judgment in a fundamental rights case appears to have the character of an advisory opinion.
The two “directions” it issues to the government contain no time limit for compliance and are sufficiently vague that it takes trivial effort on the part of the government to claim “compliance.”
In fact, the most recent order of suspension of the internet in J&K, lifting the shutdown in parts for certain websites and continuing it elsewhere, can also be said to have “complied” with the ineffectual directions of the Court.

Why is the government resorting to internet shutdowns frequently?

First, the police and state machinery use this blunt tool at their disposal because none better have been offered to them in an escalating situation.
Second, no consequences follow for even the illegitimate use of a mass measure like internet shutdowns against the general public.
There is no remedy forthcoming for a person who suffers material loss as a result of an internet shutdown imposed on them.

Way Forward

Though there are concerns regarding restrictions, it does not mean that there can be no restrictions ever placed on the web.
Disruption of connectivity should be resorted to only in the face of specific threats.
A disruption is an extreme measure, and should be countenanced only for a specific threat, and as an interim measure only as it is official communications that fill the information vacuum. A case in point is the spreading of rumours on child lifters on social media, which resulted in several lynchings.
The judiciary needs to determine whether the executive has provided a reasoned order when it directs an internet ban.