Internet access a fundamental right, can’t be suspended indefinitely: SC on J&K lockdown

The Supreme Court directed authorities to review all restrictive orders within a week.
Internet access a fundamental right, can’t be suspended indefinitely: SC on J&K lockdown
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The Supreme Court on Friday said that all restrictive orders under Section 144 of CrPC and suspension of internet services in Jammu and Kashmir have to be reviewed by the administration within a week. On the issue of internet services, the court said right to internet is a fundamental right (subject to reasonable restrictions) included in the freedom of expression under Article 19 of the Indian Constitution. It added that suspension of internet services indefinitely is a violation of telecom rules. 

Many parts of Jammu and Kashmir have been under lockdown for five months now - with no internet and restrictions on movement. The internet shutdown in Kashmir is the longest in any democracy in the world. 

Justice NV Ramana started by quoting from Charles Dickens’s Tale of Two Cities. He said that their “limited concern is to find a balance regarding security and liberty of people”. The judge said that they would not delve into the political intent behind the lockdown on J&K, and will try utmost to “balance human rights and freedoms with the issue of security”.

On the matter of internet blackout in Jammu and Kashmir, the court made a significant observation. It said that freedom of expression guaranteed as a fundamental right under Article 19 of the Constitution includes the right to internet. “Restrictions on the internet have to follow the principles of proportionality,” Justice NV Ramana said. 

He added that restrictions on fundamental rights could not be in exercise of arbitrary powers. These freedoms could only be restricted as a last resort if “relevant factors” have been considered and no other options are there, the court said. It added that any order passed to restrict or suspend judicial scrutiny will be subject to judicial scrutiny.  

Making another significant observation on the usage of section 144, which, if imposed restricts the assembly of more than five people in public, the court said that the law should be used only if there is an emergency meriting its invocation. “Mere expression of disagreement cannot be a ground,” Justice NV Ramana said, Live Law reported. 

The Supreme Court also said that all future restrictive orders should also be reviewed in a timely manner. 

The apex court was delivering the verdict on a clutch of petitions filed by many people including by senior Congress leader Ghulam Nabi Azad, challenging the Union government’s decision to impose restrictions on the erstwhile state of Jammu and Kashmir after the August 5 revocation of provisions of Article 370, giving special status to the state.

A bench, headed by Justice NV Ramana and comprising Justices R Subhash Reddy and BR Gavai, had reserved judgement on the matter on November 27 last year. Besides Azad, the court had heard the petitions filed by Anuradha Bhasin, Executive Editor of Kashmir Times, and few interveners, who challenged the imposition of restrictions on the valley.

The Supreme Court had said that "we are more concerned about the future", as it reserved its verdict. Solicitor General Tushar Mehta consistently maintained that during the imposition of the restriction in the Jammu and Kashmir region, neither a single life was lost nor a single bullet was fired.

Senior advocate Kapil Sibal, representing Azad, said that restrictions have virtually abrogated the fundamental rights and paralyzed the lives of seven million people in the region. He contended that restrictions have been imposed under the garb of public tranquillity, public order and national security, but national security does not appear in the order imposing Section 144 of the Criminal Procedure Code in the region.

"This is not about the past, but it is about the future", he submitted before the bench on the final day of the hearing.

Advocate Vrinda Grover, representing Kashmir Times Editor Anuradha Bhasin, contested the restrictions by terming them "unconstitutional" and consistently argued that the restrictions have to pass the test of proportionality.

The Jammu and Kashmir administration had contended before the court that normalcy was returning to Kashmir. Mehta, representing the administration, submitted data on the same in the top court. He insisted the curbs on the internet are justified, as cross-border forces are waiting to exploit this opportunity by pushing anti-India sentiments through various social media platforms.

Mehta told the court that terrorists' and Pakistan's Army official Twitter handles have been used to instigate people for "jihad".

Sibal contested the shutdown of internet services have severe consequences on business, trade and heavily affect the common people in the region. He contended that abnormal conditions have been induced through restrictions. Saying that the state should not muzzle the voice of common people, he also highlighted instances of misuse of technology.

(IANS inputs)

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