When a right is violated, the remedy has to be the restoration of the right. No matter how beautifully the lofty principles of fundamental rights are articulated, nothing can substitute for real action to restore them.
Friday's Supreme Court judgement in petitions against the communications blockade and other restrictions in the erstwhile state of Jammu and Kashmir fails on this count. While it engages with important questions of law and lays down guidelines for the future, it has completely failed to apply its own deductions to the matter at hand.
No conclusions have been reached on the legality of the restriction orders passed since August 4, hours before the special status of Jammu and Kashmir under Article 370 of the Constitution was removed, the state split into Union territories and the internet snapped. Most people in the Valley still do not have access to the net. This has meant that e-commerce has come to a standstill, students cannot apply for courses or check their results online and even plane and train tickets cannot be purchased from websites
But the Supreme Court has allowed the restrictions to be sustained, only asking the state to review these curbs.
The three-bench order written by Justice NV Ramana deals with all the major questions that the petitioners posed. These include the shutdown of internet and other communication services, the enforcement of prohibitory orders under Section 144 of the Criminal Procedure Code across Jammu and Kashmir, and the resultant effect of both these on the freedom of press.
In his analysis, Justice Ramana recognised the importance of the law keeping pace with technological developments. He quotes previous judgements of the court to show how fundamental rights have been consistently expanded to cover new technologies that have become an integral part of life. These include television and the internet.
Thus, the bench definitively recognised communications and business being conducted over the internet as part of the provisions under Article 19 of the Constitution, which relates to rights of speech and trade. However, this does not mean the right to access internet itself has become a fundamental right, a proposition that the bench as left open.The court said:
"None of the counsels have argued for declaring the right to access the internet as a fundamental right and therefore we are not expressing any view on the same. We are confining ourselves to declaring that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected."
Since the communication and trade through internet has been declared as part of fundamental rights, the court then moves on to the question of how these rights could be reasonably restricted. In India, as the court points out, fundamental rights are negative in nature. That is, no one can restrict them unless this is done according to the procedure established by law. As all fundamental rights have reasonable restrictions, the court had to decide what constitutes a reasonable restriction on communication and trade through the internet.
For this, the court analysed the internet suspension rules and the Telegraph Act, which forms the basis for executive action restricting communications to be taken.
As far as internet restrictions are concerned, the court invoked the concept of proportionality: any measure to restrict a right should be proportional to the object of the measure. Any measure disproportionate to the object becomes illegal. In case of internet shutdowns, what makes it necessary is "public emergency".
The court also made it clear that authorities have to adopt the least restrictive measure in dealing with such situations. The bench said:
"The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed."
In light of this, the court was expected to examine the orders passed by the state and determine if they were proportional in nature. The bench, however, did not do so, even though the state did not show anywhere in its arguments that its orders were proportional to the its object of maintaining public peace, something that the judgement demands as a prerequisite.
Instead, the court asked the state to review the orders that have been passed in Jammu and Kashmir according to the principles it as expounded, even as it went on to fill in what it called a gap in the internet suspension rules. It said the committee under the rules should review internet restriction orders every week.
Curiously, though the bench noted that the governments did not place before it all relevant material, especially on the status of current restrictions, it did not pull up the state. Instead, the bench said that in the absence of the material, it would "mould relief" accordingly.
The court said:
"As all the orders have not been placed before this Court and there is no clarity as to which orders are in operation and which have already been withdrawn, as well as the apprehension raised in relation to the possibility of public order situations, we have accordingly moulded the relief in the operative portion."
The apprehension about public order being disturbed was a reference to the history of unrest and insurgency in the region and the possibility of elements from across the border instigating violence, something that the bench recognises several times in the order.
Operation of Section 144
With regards Section 144, which restricts even small public gatherings, the court took a similar line and calls for proportionality in such orders, which invariably hamper movement. It made a distinction between the concepts of "law and order" and "public order", with the latter being more serious as its effect is on a larger scale. Thus, the measures adopted to handle a "law and order" situation cannot be as serious as those adopted to counter a "public order" problem.
The court noted the need to follow the letter of the law. The bench made it clear that reasons have to be provided after application of mind to impose such restrictions. Besides, this provision cannot be used to restrict legitimate dissent. The court said:
"In this context, it is sufficient to note that the power under Section 144, Cr.P.C. cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights. Our Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144, Cr.P.C. unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger.
Again, the court failed to analyse the legality of the Section 144 orders imposed in Jammu and Kashmir and instead asked the government to review them. The relief, in that sense, does not attend to the apprehensions that fundamental rights have already been violated, necessitating a judicial remedy. The court merely pointed out the law as it stands.
Perhaps the most curious of all sections in the judgement is how it dealt with the question of restrictions on the media. The petition was primarily one by a journalist from the Kashmir Times asking for some restrictions that had impeded the freedom of press to be lifted.
In dealing with this, the bench pointed out that the petitioner did not produce any orders that directly restricted freedom of press and of publishing. In fact, the bench said that the petition did not show how people placed in similar positions, that is other newspapers and media outlets, had fared under such restrictions. The state government had contended that other newspapers were being published.
The court did recognise that though there were no direct orders restricting the press, what the petitioner was opposing was the cumulative effect of the other restrictions that had a chilling effect on the press. Though the bench stopped short of adjudicating on the concept of the chilling effect, it did comment extensively on it citing American case law.
The bench argued:
"Therefore, to say that the aforesaid restrictions were unconstitutional because it has a chilling effect on the freedom of press generally is to say virtually nothing at all or is saying something that is purely speculative, unless evidence is brought before the Court to enable it to give a clear finding, which has not been placed on record in the present case."
The court, however, said that freedom of journalists should be respected by the governments.
What emerges from the 130-page judgement is the court's abdication of duty. The petitioners had argued that the restrictive orders passed by the state were illegal and undermined the fundamental rights guaranteed under the Constitution.
Though the court has spent considerable energy on explaining the law and laying down guidelines for these to be implemented properly in the future, it has totally failed to apply these principles to the case in hand.
Instead, it has left that decision to the government that enforced these orders in the first place. This has opened the doors for another round of litigation where the government review orders will be challenged and then the courts will hear arguments on their legality. In the meantime, the people of Jammu and Kashmir will have to live under these restrictions if the state chooses to continue them.
The judgement in the present case was reserved on November 27. Kashmir now has the distinction of being under the longest internet restriction faced by any place in the democratic world.