The recent changes in the State of Jammu and Kashmir have triggered the world. This article focuses on the rights of individuals in the now Union Territory of Jammu and Kashmir, specifically the right of access to the internet and the international response to the situation. The scope of this article is limited to the evaluation of the intersection between these three aspects. The aim is to provide an objective analysis of the right to access the internet in light of the current situation.
On 5th August 2019, substantial changes were made to the Constitution of India that resulted in the change of fate for the State of Jammu and Kashmir. The special status granted to it under Article 370 of the Constitution was revoked. Although the special status was a temporary provision, it was to remain in force until the President, by public notification, declared to cease the operation of the article on the recommendation of the Constituent Assembly of the State. This condition could not be fulfilled as the Constituent Assembly has long stood dissolved. Nevertheless, the President passed the Constitution (Application to Jammu and Kashmir) Order, 2019 with the concurrence of the Government of State of Jammu and Kashmir (read Governor) to extend the application of the Constitution of India to the State by amending Article 370(3), thereby, revoking the special status of Jammu and Kashmir.
This legislative move was accompanied with various other actions, like mobilization of troops, restriction of movement, the blackout of communication inter alia. The rationale provided by the Government was that restrictions were necessary for national security to curb terrorist propaganda and militant activities. It was necessary to stop the dissemination of fake news that are meant to incite people and was a precaution required to maintain peace in the area and prevent civilian casualties. This was met with strong opposition from various groups of the society, in India and abroad. While people were unable to contact their loved ones within the State, the lack of information caused confusion and chaos. It was declared that the restriction would be lifted in a phased manner, however, this turned out to be the longest shutdown in India. Amidst the threat of terrorism, the high-speed internet still faces restriction as per the Government decision in July 2020.
The international community expressed concerns regarding the rights of individual who were either placed under house arrest and people affected by the imposition of section 144 of the Code of Criminal Procedure and the communication blackout. However, the reaction to the act of abrogation of Article 370 has remained relatively mild, as it is considered an “internal matter” or a “bilateral issue” to be resolved by India and Pakistan. Despite, Pakistan and China declaring the act to be “illegal” and taking several steps to bring the “oppression” by India to the attention of the international community and call for international intervention, the majority of the countries have maintained their stance on the subject. The status of Jammu and Kashmir has been accepted in some countries and international intervention is unlikely with regards to the act of abrogation. However, the relations with Pakistan and China are ever-worsening.
As a result, India is under the limelight and not for positive reasons. The concern regarding human rights in the valley has increased as nations “closely watch” the situation. While the act may have been passed the scrutinous gaze of the international forum, the repercussions are yet to come on the diplomatic front. With regards to the restrictions, there has been a substantial outcry by national and international communities.
- Secretary-General of the United Nations issued a statement expressing concern over the unprecedented security lockdown.
- Independent United Nations Human Rights Experts have called for an end to the curb on freedom of expression and access to information. They opined, “The shutdown of the internet and telecommunication networks, without justification from the Government, are inconsistent with the fundamental norms of necessity and proportionality”. Calling the blackout, a “collective punishment”, strong concerns have been raised regarding the violation of rights of individuals.
- The US Congressional Committee and the EU are among many countries urging for the lifting of the restrictions in the valley.
- The Asian Forum for Human Rights and Development, CIVICUS, the International Federation for Human Rights, and the World Organization Against Torture have urged the government to restore internet connections and expressed concerns over the wide-ranging impact on basic human rights caused by the continuous restriction on communications.
The complete lockdown that the valley was under caused various hardships to the people that could not be ignored. In a phased manner, most restrictions were lifted to provide little respite to the individuals. However, high-speed internet is still curbed and prohibited by the Government due to the apprehension that social media will be exploited to incite people to violence.
Right to Internet Access
A writ petition was filed in the Supreme Court of India under Article 32 seeking issuance of an appropriate writ to quash order(s), notification(s) issued by the Government suspending modes of communication including internet, mobile and fixed-line telecommunication services in the State. It was contended by the counsel that curtailing internet, is a restriction on the right to free speech and therefore, the orders should be tested on the basis of the reasonableness and proportionality test, inter alia. Before delving into the case, it is pertinent to note on the onset that the Anuradha Bhasin v Union of India case is often cited for declaring the right of access to the internet to be fundamental. However, such an argument was not raised in the Court, and therefore, the Court did not rule on the issue of whether internet access is a part of the fundamental right guaranteed under the Constitution.
The Supreme Court acknowledged the importance of the internet as an enabler for the most basic human activities including dissemination of information, trade and commerce, and expression of ideas in contemporary times. The relevance was such that the freedom of speech and expression through the medium of the internet was ruled to be an integral part of Article 19(1)(a) and freedom of trade and commerce through the internet was constitutionally protected under Article 19(1)(g). Accordingly, any restriction must be in concurrence with Articles 19(2) and 19(6) of the Constitution. Therefore, the restriction on the internet in Jammu and Kashmir had to pass the reasonableness and proportionality test. The Court evaluated the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 in place and said the Rules have gaps with respect to the time limitation for suspension of internet, inter alia.
While the Rules require the prohibition to be “temporary”, there is no time limit prescribed. The Court opined that these gaps must be filled by the legislature. Regardless, since the prohibition must be proportional to its need the suspension for an indefinite time was ruled to be impermissible. Further, the Court ruled that the Rules cannot be relied upon for measures that are disproportionate and procedural safeguards must be followed. Suspension of internet, if any, must be in accordance with the principles set out in the case. It must be noted that all the orders passed by the Government were not placed before the Court so a complete analysis could not be drawn on merits. Since there was a lack of clarity as to which orders were in operation and which were withdrawn the Court moulded the relief in an operative portion.
Appreciating the issue of national security and the possibility of danger to public security the Court ruled that complete suspension of the internet was a drastic measure and should be implemented only if it was “necessary” and “unavoidable”. In the interest of natural justice, the Court directed the publication of all orders passed by the Government and any order suspending internet services would be subject to judicial review. The suspension must be proportionate and must operate for a limited duration only. In the meantime, the State must assess the viability of an alternate remedy that is not as intrusive to achieve the goal. The Court concluded the case by directing the State to review the orders passed by it and revoke any order that was not in accordance with the law and constituted a Review Committee under Rule 2(5) of the Suspension Rules to a conduct periodic review as per Rule 2(6).
It is now clear, that the right to access the internet is not itself a human right or fundamental right but rather is an enabler of one as per the present Indian jurisprudence. As such it is not absolute and the Government is empowered to restrict it when necessary in accordance with the law. The Court has refused to exert its power and interfere with the orders to suspend the internet. Disturbance to public order is a legitimate ground for suspension of internet services and the Government has definitely made use of it to curtail internet access. However, the impact of such restriction has been tremendous and the national and international community has taken note of it and condemned it. On 11th May 2020, the Court directed to form a special committee to examine the issues caused due to the slow speed of the internet and evaluate the necessity of continuing the restriction in the Union territory. It had to examine the issue of “blanket ban” and assess if a ban was necessary for every district.
The Government, however, did not make public any information about the formation of the Committee preceding which a contempt petition was filed. Rather, more orders were passed extending the suspension of internet services. The Centre, through the Attorney General, presented to the Court that the Special Committee in their meeting concluded that the situation was not conducive to the restoration of high-speed internet services as yet and only 2G speed was permissible. Presently, an order has been passed restoring high-speed internet services in one district in Jammu and one district in Kashmir on a trial basis for two months from the 16th of August, 2020. This effort is benign, as the Special Committee is not reviewing the situation periodically as envisaged by the Court. It remains to be seen where the fate of the internet in the Union Territory is headed.
- What was the response of the international community to the abrogation of Article 370?
While Pakistan and China are outraged and call for international intervention, the international community majorly considers it an “internal matter” or a “bilateral issue” between the two countries. However, the community has condemned the lockdown in Kashmir strongly.
- What are the repercussions?
The repercussion of such an act are yet to be seen on the diplomatic front. While massive protests were seen all over the country, the country itself has come under the watchful eye of many nations.
- Are the internet services in Kashmir still curtailed?
Yes, high speed internet is still curtailed in most districts of the Union Territory. It has been operational in one district in Jammu and Kashmir each on a trial basis.
- Is access to internet a part of our fundamental right guaranteed by the Constitution?
No. However, internet as a medium of free speech and trade is constitutionally protected. It is largely seen as an enabler of fundamental right as its importance is widely accepted.
- What was the ruling of the Supreme Court on internet services in Kashmir?
The Supreme Court did not interfere with the orders of the Government to suspend internet. However, it issued directions to ensure that all procedural safeguards were followed and cautioned the Government to only suspend internet when necessary in the interest of public order.