Evasion through Abdication by Supreme Court in its 4G Judgement

This blog is inscribed by Saumya Giri.

Background

On August 4, 2019 State of Jammu and Kashmir was jolted by the revocation of Article 370 which grants special status to it and bifurcated the state into two Union Territories, Jammu & Kashmir, and Ladakh. To ensure law & order and public security, all sort of communication was blocked. Gradually, the govt. lifted the restriction on such communication but for a long time of around 8 months access to the internet was not permitted like before, it was only in January when Hon’ble Supreme Court in case of Anuradha Bhasin v. Union of India [1](BHASIN) held that “Freedom of Speech and Expression through the medium of the internet is an integral part of Article[2] 19(1)(a) and laid down special safeguard which govt. need to abide by while imposing internet shutdown. As a result govt. lifted the ban on the internet but only 2G internet services were restored.

On 9 April, a body called Foundation for Media Professionals filed a plea before Apex Court, seeking the court’s direction to restore 4G internet service as it violates the right to health, education, freedom of speech, freedom of trade and access to justice. Further, on 11 May, Supreme Court rejected the petition to restore 4G internet service in Union Territory of Jammu & Kashmir and besides abdicated its judicial task to decide upon the constitutional validity of internet suspension to a Special Committee, i.e. composed of members of executives.

Government Response

The Government submission was made to the court on behalf of principal secretary, home department, by Shashi Juneja, additional standing counsel wherein he majorly made following points:-

  • Since the right to access the internet is not per se a fundamental right, thus type and breadth for access under Article 19(1)(a)[3] & Article 19(1)(g) [4] of the Constitution can be curtailed.
  • The foremost reason for doing so is combating terrorist activity, as restoration of 4G mobile data, service would lead to a substantial increase in the use of social media and other platforms which in turn would increase faster circulation of material that would incite violence especially among youth, thus, deteriorating law and order situation in Valley.
  • It was also submitted that rights guaranteed under Article 19(1)(a) & Article 19(1)(g) cannot be said to be curtailed by reducing the speed of the internet. Moreover, Article 19(2)[5] impose restrictions on freedom of speech and expression to maintain sovereignty and integrity of India, the security of the state, public order or to avoid incitement to an offense. Likewise, the right to carry on any trade or business can be restricted in the interest of the general public, public order, public health, public security under Article 19(6)[6].”
  • It was argued that internet was an “enabler of rights and not a right in itself”, also, that the present 2G speed of internet does enable one to create, access, utilize and share information and knowledge
  • Owing to the present situation of pandemic Govt. stated that the current speed of the internet does suffice the basic need of health personnel and common citizen to deal with COVID – 19 crises efficiently.

Critical Analysis

·       Legality of Order

The minimum requirement for imposing any restriction or suspension order to be held lawful is that it must list the reason for the same as held in the case of BHASIN, and repetitive suspension order in Jammu and Kashmir did not disclose any reasons, they defy BHASIN vehemently and Court agreed to it.

·       Proportionality Test

It was held in Bhasin case by Supreme Court itself that any restriction imposed ought to satisfy proportionality test, and this can be judged by looking into other things including “territorial extent”, that means internet should be suspended in regions where there is exists an imminent threat to public order, thus, this suspension would have been avoided to be imposed upon entire union territory without explaining the reason for the same.

·       Selective Access to Websites

One of the important facets of proportionality is that the state must choose the alternative that least burdens the rights in question, so concerning internet suspension, it can be done that access must be cut off or downgraded only to particular websites rather than to the whole web per se. Thus, the court must emphasis upon selective blocking and 4G must be restored to a website like governmental, educational, medical or news website, etc., yet it’s an unfortunate event that contrary was done in the present case as this judgment does not talk about least restrictive alternative or selective access at all.

·       Another Committee

The restriction that was disputed was an outcome of the new review mechanism and Court was tasked to determine its validity but rather than doing this it sets up yet another Special Committee- this time consisting of Union Home Secretary, Union Communication Secretary and Chief Secretary of Jammu and Kashmir – to decide upon the contention put forth by both the parties and determine whether the restriction is appropriate. This appeared to be problematic majorly because this amounts to a judicial abdication of responsibility which was entrusted in the Supreme Court to provide a remedy for violation of Fundamental Right through Article[7] 32 and forbid it from abdicating in this manner.

Thus, our Constitution does not leave the Supreme Court with an option to give up its duties in favor of any committee no matter how special it is. Along with this, another blatant mistake that is done by forming this committee is evident by its constituent, that is to state the obvious, the Court has delegated its sacrosanct obligation of determining the constitutionality of executive action to executive itself as all three members of the committee is in one or the other way related to respondent i.e. State of Jammu and Kashmir in this case and by doing so it abandons the very basic principle of check and balance.

·       Terrorism can’t be the Justification

To put forth the argument that faster internet would mean to facilitate terrorism is refuted by the petitioner on the ground that in most cases of terrorism in the state, they were conducted in the area where there was no internet access. There exist data from South Asia Terrorism Portal shows that the incidence of terrorism was much higher before 2006 when the internet connection was slower and even non-existent in a certain area. Thus, we may say that logical extension of the government stand to continue with such restriction while terrorism is prevalent may lead to an absurd result that Jammu and Kashmir may never access to 4G internet service until and unless terrorism is completely eradicated from the valley.

Necessity During COVID-19

Owing to the present situation this particular case is no more restricted to appear as a case law based upon the principle that indicates no “fundamental freedom” is absolute, this has brought forth the concern of “right to life”. It was argued that the 2G internet services aren’t enough to fulfill the essential requirements such as education and medical consultation that has come up due to coronavirus lockdown as it is now conducted online and slow internet speed hampers that demand. The Supreme Court in its innumerable decision held that right to health is part of the right to life and constitutional duty of the state to provide timely healthcare services in increased manifold during such pandemic situation and denial to access the most efficient, convenient and potentially cheap mode to access healthcare service – through use of 4G internet – is violative of the constitution. This restrictive access to 2G internet service has even shown its impact on judicial proceeding which is now being conducted online owing to the contagious nature of COVID-19 as it was reported that even Jammu and Kashmir High Court has found it difficult to function under lockdown, with judges using WhatsApp and landline phones to conduct proceedings with lawyers in Valley.

Conclusion

Equally unsettling upon the Supreme Court’s delegation of authority, however, is its assumption of responsibility of striking balance between liberty and security. It is so obvious to have inclined towards security over liberty by any court if the question is framed such but putting up such an issue is problematic as it’s at odd with Court’s role as an independent decision-maker. To strike a balance between two was majorly responsibility of democratically elected government and Court’s role is to simply judge if the balance that has already been struck by the government is constitutionally permitted. Moreover, the court should have sought justification from the government for not moving towards lesser restrictive alternatives and should have been consistent with its prior BHASIN judgment.

Above all, such an order would not prevent the government to impose more alike suspension but would compel them to think more seriously upon it while tailoring such future orders as it should only fulfill the security concern and should not go further. If in future Supreme Court is called upon to decide the constitutionality of communication restriction then it needs to not only take back its adjudicative power but also handover the executive one.


[1] Anuradha Bhasin v. Union of India [WP(C) 1031/2019].

[2] INDIA CONSTI. art. 19(1) (a).

[3] Ibid.

[4] INDIA CONSTI. art. 19(1)(g).

[5] INDIA CONSTI. art. 19(2).

[6] INDIA CONSTI. art. 19(6).

[7] INDIA CONSTI. art. 32.

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