Part II of the Recap summarizes arguments made by the petitioners and the government about the constitutional validity of the communication shutdown and movement restrictions in Kashmir under Articles 19 and 21 of the Constitution. The petitioners argued that the restrictions were disproportionate because if the government wanted to prevent the use of fake propaganda to incite violence, it could have adopted less restrictive alternatives such as selectively blocking social media platforms. In response, the government stated that it was impossible to block selective platforms because terrorists would migrate to other platforms or use the dark web for their illegal activities.
Wait, what is this constitutional legal mumbo jumbo again?
The Indian Constitution grants certain basic rights the status of fundamental rights and empowers any citizen to approach the Supreme Court or High Courts to seek remedy for their violation. These fundamental rights are enumerated in Part III of the Constitution and they include Articles 19 and 21. Article 19 guarantees the right to freedom of speech and expression, peaceful assembly, association and free movement subject to reasonable restrictions in the interests of sovereignty and integrity of India, the security of the state and public order. It is also important to note that unless there is a declaration of emergency under Article 352, the fundamental rights guaranteed by Article 19 can only be reasonably restricted and they cannot be suspended. Article 21 guarantees the right to life and personal liberty, and through judicial precedent, this right has been expansively interpreted to include the right to shelter, healthcare and education. The Indian judiciary has time and again emphasized that the right to life under Article 21 is more than mere animal existence and it includes various rights which are necessary to lead a dignified life.
National Security. Full Stop?
Before we dive into whether the restrictions in Kashmir are reasonable and proportionate, we must first decide what is the appropriate standard of judicial review in cases where national security concerns are pleaded by the government. On this aspect, the petitioners submitted the Court should not accept the government’s assertion that the restrictions were temporary, need based and periodically reviewed at face value. Instead, the Court must determine if there was sufficient objective material to justify such severe restrictions. The petitioners drew parallels between the government’s arguments in this case and the infamous majority decision in ADM Jabalpur v. Shivkant Shukla to emphasize that fundamental rights cannot be left at the mercy of executive benevolence.
In its response, the government clarified that it was not seeking exclusion of judicial review per se but it submitted that in cases involving national security concerns, the Court cannot function as an appellate authority. Issues involving national security are primarily within the domain of the executive and the Court should exercise restraint in such cases because the executive is best suited to make such decisions by virtue of knowing ground realities and receiving intelligence inputs. Therefore, once the Court is satisfied that a particular case has national security implications, the scope of judicial review is very limited.
Are the restrictions reasonable and proportionate?
The petitioners argued that restrictions cannot be so severe that they extinguish the right itself. Remember what we said earlier about the government being permitted to suspend fundamental rights under Article 19 only if there is a declaration of emergency under Article 352? That’s extremely important because the Constitution does not envisage a scenario where fundamental rights can be suspended in a “normal” situation. A declaration of emergency under Article 352 would also be subject to scrutiny by the parliament and this is a crucial safeguard. Therefore, by effectively suspending the right to free speech, peaceful assembly and movement in Kashmir without an official declaration of emergency, the government has managed to suspend rights while avoiding parliamentary scrutiny.
The petitioners argued that the restrictions had brought life in Kashmir to a standstill for millions of citizens. Since they could not make phone calls, access the internet or freely move out of their homes, people were unable to visit hospitals, attend school or carry on their business. If the government was concerned about fake propaganda which could incite the masses, it could have restricted access to social media platforms but there was no need to block voice calls and the internet in their entirety. The petitioners produced copies of previous shutdown orders from Bihar and Kashmir as examples of administrative authorities resorting to limited blocking of social media platforms to prevent public disorder. Since there was a less restrictive alternative available in the form of selective blocking of social media platforms, the government’s all encompassing ban on landlines, mobiles and the internet was disproportionate and unreasonable.
The Solicitor General cited statistics about how the restrictions in Kashmir had been gradually eased over the last three months and suggested that this demonstrates that the restrictions were need based and the administrative authorities had applied their mind before imposing them. The government argued that it was impossible to segregate criminals from law abiding citizens, and therefore, it was justified in imposing restrictions on all citizens in the region. The government further submitted that it was not possible to selectively block social media platforms and the only feasible solution was shutting down the internet entirely.
Is access to the internet a fundamental right under Article 21?
The petitioners explained that in the modern digital India, use of the internet was necessary to access government schemes such as Ayushman Bharat, banking facilities etc. The petitioners cited a recent Kerala High Court decision and the National Telecom Policy 2012 to support their stance that access to the internet is a fundamental right.
The Solicitor General did not directly address whether the government considered access to the internet to be a fundamental right but he characterized the internet as a dangerous tool capable of misuse. He argued that various cases relied on by the petitioners were not applicable because the standards for newspaper regulation and internet regulation should be different as the internet allows two way communication unlike newspapers. He further stated that social media allowed terrorists to reach a large number of people with minimal effort through the use of hashtags etc. He also raised alarm about the dark web which was encrypted, untraceable and used for illicit activities.
The Constitution of India was drafted decades before the invention of the internet but it is a visionary document which is intended to circumscribe the power of the State over the lives of citizens for centuries to come. Regardless of which side prevails, this case will certainly be a watershed moment in constitutional history about the status of the right to access the internet and what kind of restrictions can be placed on this right.