September 04, 2019: It has almost been one month since the Central Government imposed a complete communication shutdown in Kashmir on 5 August 2019. While restrictions have been eased in the Jammu region, the Kashmir valley continues to remain under clamp down with internet and cellular network services suspended. On 19 August 2019, a young Kashmiri student based in Bangalore moved to the Karnataka High Court to challenge the complete communication blockade as violative of fundamental rights of residents of Kashmir and their loved ones living outside the State.
The Petitioner was forced to approach the High Court because he had been unable to establish contact with his family members in Kashmir. He was especially worried because many of his family members suffer from various health problems and due to the communication shutdown and strict curfews, it has become difficult to call for help or reach hospitals in time. The Petition argues that the complete communication blockade violates Articles 14, 19(1)(a) and 21 of the Constitution of India and it is incompatible with India’s obligations under international human rights law. Most importantly, the Petition highlights that the communication shutdown seems to lack any legal basis because there is no order authorizing the suspension of telecom and internet services which is available in the public domain.
As a constitutional democracy, what sets India apart is our stated commitment to the rule of law. While imposing such severe and indiscriminate restrictions on an entire community, the Government must at the very least act in a transparent manner. Without access to the legal orders, it is impossible to know under which law the shutdown has been ordered, on what grounds, by which government authority, for what period of time, and whether it has been subjected to any kind of review.
There have been three hearings in the case so far on 27 August, 30 August and 3 September. The crux of these hearings has been the maintainability of the Petition in light of a similar petition filed by Mr. Tehseen Poonawalla being pending before the Supreme Court. During the hearings, the counsel for the Petitioner has clarified that this case is different because the Petitioner is personally affected by the communication shutdown. Further, High Courts in India have independent and concurrent powers to protect fundamental rights of individuals within their territorial jurisdiction. To us, this is also an access to justice issue because an aggrieved person cannot be compelled to travel all the way to the Supreme Court in Delhi to seek constitutional remedies.
Internet Freedom Foundation along with Ms. Maansi Verma assisted in drafting the Writ Petition and provided inputs on strategy and policy. The Petition was filed and argued by Mr. Vishwajith Sadanand and Mr. Ravi Varma Kumar and we deeply appreciate their support. While at the moment, IFF does not have the capacity to be a full fledged legal clinic, we do take on this role whenever there is a serious violation of rights of internet users in any part of India. This Petition is part of our larger advocacy against internet shutdowns which are a pan-India problem. Internet shutdowns cause great hardships because ordinary people cannot access many government benefits and essential services such as banking without the internet. In today’s digitized world, the internet cannot be considered a luxury, and access to the internet is a fundamental right and any restrictions on it must be subjected to constitutional scrutiny.
- Copy of Writ Petition (link)