[Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This is part of a series of posts discussing the public law themed research articles featured in Volume 9 of the Indian Journal of Constitutional Law. You can access all the posts in this discussion here . In this piece, Devdutta Mukhopadhyay provides us a summary of her co-authored paper titled ‘Jammu & Kashmir Internet Restrictions Cases: A Missed Opportunity to Redefine Fundamental Rights in the Digital Age’, which discusses the Supreme Court’s judgements relating to internet restrictions imposed in Jammu & Kashmir.]

Introduction

Indians experience the highest number of internet shutdowns in the world. In particular, the people of Jammu & Kashmir have been subjected to the longest internet shutdown ever imposed in a democracy. Internet services were restricted in Jammu & Kashmir from 05 August 2019 to 05 February 2021 citing national security and public order concerns. These 550-day long internet restrictions led to multiple rounds of litigation before the Supreme Court of India. The result is the judgements delivered in Anuradha Bhasin v. Union of India [“Anuradha Bhasin”] and Foundation for Media Professionals v. U.T. of Jammu & Kashmir [“FMP”]. Our article examines both these judgements and critiques the Court’s outsourcing of decision-making to government authorities and its narrow conception of the right to internet access.

The Judgements in Anuradha Bhasin and FMP

In Anuradha Bhasin, the Supreme Court held that the right to access the internet to express oneself and to conduct one’s business was protected by Articles 19(1)(a) and 19(1)(g) of the Constitution respectively. This right could be restricted only in accordance with the proportionality standard, which requires the government to narrow down the temporal and geographic scope of internet restrictions. Unfortunately, these principles were not applied by the Court to grant any effective relief to the people of Jammu & Kashmir. Instead, the Court directed the government to apply the proportionality standard to evaluate its own internet shutdown orders.

From a practical standpoint, the Court found it difficult to evaluate the internet shutdown orders because only eight sample orders were produced before it. Despite specific prayers being made by the petitioners and intervenors for production of the orders, the government did not place them on record. While the Court did not penalise the government for its failure to produce the orders, it did recognise the larger underlying problem. The Court noted that the Temporary Telecom Suspension Rules, 2017 were deficient because the government was not required to proactively publish internet shutdown orders. Further, the Rules did not provide for any period review of internet restrictions. As a stop-gap measure, the Court directed proactive publication and periodic review of all internet shutdown orders till the Rules were amended.

After the judgement in Anuradha Bhasin was delivered, the government gradually relaxed the internet restrictions but mobile internet speed continued being slowed down to 2G. This meant that the vast majority of internet users in Jammu & Kashmir did not have effective internet access. In Jammu & Kashmir, there are 73 mobile internet subscribers for every fixed-line subscriber. And 2G mobile internet is too slow for people to access online education, telemedicine and remote work facilities, which have become essential during the pandemic.

In FMP, the Supreme Court was called upon to determine the constitutionality of the internet slowdown in Jammu & Kashmir during the pandemic. This time, the internet slowdown orders had been published by the government and they were placed before the Court. But the Court once again refrained from issuing any binding directions. Instead, it constituted a Special Committee consisting of senior bureaucrats to examine the issue in accordance with the proportionality standard.

National Security and Judicial Review

In the article, we comment upon the Supreme Court’s decision to endorse the evidence-based proportionality standard in principle while giving primacy to vague national security concerns in practice. The most obvious example of this is the Court’s warning against “excessive utility of the proportionality doctrine in the matters of national security, sovereignty and integrity.” We argue that carving out a national security exception to the application of the proportionality standard is deeply flawed for two reasons. First, the Court failed to explain why such an exception is necessary and what would be the alternative standard of review in such cases. Second, a national security exception helps the government avoid rigorous judicial review without formally declaring a state of emergency.

We go on to highlight that the Supreme Court in Anuradha Bhasin and FMP abstained from engaging in any judicial review on both substantive and procedural grounds. Courts in India have historically been reluctant to engage in substantive review of executive action when national security concerns are raised. But Anuradha Bhasin and FMP represent a more dangerous version of this trend because the Court refrained from even answering procedural questions which could have been decided on narrow statutory grounds without engaging in controversial constitutional adjudication.

Most importantly, we caution against the judiciary’s tendency to outsource decision-making to the government in national security related cases. While the Court’s attempt to fix the deficiencies in the Temporary Telecom Suspension Rules, 2017 is well-intentioned and valuable, it is not enough. Merely improving mechanisms for administrative review will not prevent arbitrary and disproportionate internet restrictions. Judicial review remains necessary because constitutional judges are best placed to evaluate the humanitarian impact of internet restrictions on the local population. Our Constitution creates a system of checks and balances to protect the fundamental rights of citizens and it does not allow the executive branch to be the final judge in its own cause.

The Right to Internet Access and its Dimensions

In Anuradha Bhasin, the right to internet access was held to be a derivative fundamental right that enables the exercise of primary fundamental rights. These primary rights include the right to freedom of expression guaranteed under Article 19(1)(a) and the right to freedom of trade guaranteed under Article 19(1)(g) of the Constitution. Interestingly, the Court limited the scope of the right to internet access to a negative right against government interference. In the article, we argue that the Court’s cursory dismissal of a positive right to internet access is inconsistent with its past jurisprudence, government policy and international human rights norms. 

The Supreme Court has previously recognised various socio-economic rights which impose positive obligations on the State to provide food, education and healthcare as a part of the fundamental right to life under Article 21. Therefore, there is no a priori justification to limit the scope of the right to internet access to a purely negative right which only provides protection against government interference but does not impose any positive obligation on the government to facilitate internet access by creating necessary infrastructure. Further, as evinced by the Universal Service Obligation Fund and the National Broadband Mission, the government itself recognises internet access as an essential service and seeks to ensure universal broadband coverage.

In light of this, we find the Court’s observation that “positive prescription of freedom of expression will result in different consequences which our own Constitution has not entered into” to be unwarranted. Recognising a positive right to internet access does not mean that every citizen must be immediately provided a smartphone and an internet connection. It is well-established that positive rights may be gradually realised keeping in view budgetary constraints. Therefore,  the Court’s pragmatic concern about “socio-economic costs of such proactive duty” can be easily addressed.

We also clarify that in Anuradha Bhasin and FMP, the Court was only required to enforce a negative right against government interference with internet access. It did not have to direct the government to create any new digital infrastructure. It only had to prohibit the government from disabling existing digital infrastructure. Since this would not require any additional financial outlay, the violation should have been addressed in an urgent and binding manner. So, we find that the Court did not even enforce the narrow negative right to internet access that it did recognise.

Conclusion

While the judgements in Anuradha Bhasin and FMP did not go far enough, they marginally improved the status quo by nudging the government to restore limited internet access. These cases have also laid down the groundwork for future litigation. In particular, the Court’s finding that internet restrictions must be narrowly tailored in their temporal and geographic scope could be used to challenge wide ranging and prolonged internet shutdowns imposed in the future. Further, by requiring proactive publication of orders, the Court has made it easier for aggrieved citizens to challenge internet shutdowns. Unfortunately, all this may be of little solace to the people of Jammu & Kashmir who saw their health, education and livelihood destroyed by these 550 day long internet restrictions.

Devdutta Mukhopadhyay is a lawyer who has experience researching and litigating internet shutdowns in India. She was previously a Litigation Counsel at Internet Freedom Foundation. The views expressed in this article are purely personal. Her Social Media: Twitter  LinkedIn.