June 4, 2020
June 4, 2020

The Kashmir Internet Shutdown conundrum: Striking at the heart of proportionality

Liberty and Security are avenues of cross swords. To ensure adequate security and sufficient restriction the parameter to determine it should not be extreme and rhetoric. India remains the largest democracy in the world. Astoundingly, it is one of the most prolific executors of Internet Shutdowns. On 5th August the Indian Government shut down internet connections in the Kashmir region.  A Presidential Order amended Article 370 of the Indian Constitution and scrapped special status to J&K. The State of Jammu &Kashmir was bifurcated into the Union Territories of Jammu & Kashmir and Ladakh. The shutdown which remained in force for 213 days, is the longest internet shutdown ever imposed in a democratic country. 
Petitions flooded the Supreme Court of India questioning the functioning of democratic government in India. Petitioners argued that the Kashmir Internet shutdown is a brazen attack on freedom of speech and expression. A three-judge bench of the Supreme Court heard the complaints and arguments in Anuradha Bhasin v. Union of India. The important issues that were raised in the court were (i) Whether the Government’s action of prohibiting internet access is valid? (ii) Whether the freedom of speech and any occupation, trade and business over the internet is a part of the fundamental rights under Part III of the Constitution?
Scrutinising the Validity of Shutdown
The internet shutdown was imposed by invoking the Temporary Suspension of Telecom Services Rules (Public Emergency or Public Safety), 2017. The preceding rules were framed under Section 7 of the Indian Telegraph Act, 1885 which empowers the government to make rules for the conduct of telegraphs. Under the Temporary Suspension Rules of Telecom Services Rules, 2017 section 2 (1) explains the directions to suspend the telecom services can only be issued if an order is made by Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India, and if an order is issued by a non-competent authority it should be confirmed by the competent authority within twenty-four hours. Under Rule 2 (2) of the Suspension rules, it is stated that the order should be proportionate and should be sent to the review committee. Rule 2 (6) lays down the final check should be conducted by a review committee which will determine the order issued under the Suspension Rules by the provisions of Section 5 (2) of the Indian Telegraph Act,1885.
In this case, Inspector General of the police issued the order which clearly violates the laid guidelines. And the orders imposing shutdown were not made public. The Government only produced sample orders and stated difficulties occurred because orders were withdrawn and modified on a day to day basis. This justification transgressed the idea of transparency and accountability which are the pillars of Democracy. Transparency and accountability create harmony between citizens and the government. It enables the free flow of information to the citizens about the rules and establishments and how does it affect them.The Government should have taken a proactive approach that all relevant orders which restrict the fundamental rights are placed before the courts.Democracy is sworn to transparency and accountability and it should ensure that mandates are accessible by the citizens.James Madison stated, A popular government without popular information or the means of acquiring it is but a prologue to farce or a tragedy, or perhaps both”.The state is accountable to uphold the Part III of the Constitution and it cannot restrict these rights in a bizarre manner and is accountable for providing a rationale for restrictions to the public.
Right to access the Internet as a Fundamental Right
The Kerala High Court in Faheema Shirin v. the State of Kerala made a clarion call regarding access to the internet as a fundamental right. The court recognized that the Internet is a gateway to information and its increasing importance enables people to access knowledge and information.It relied upon the resolution 26/13 (5) passed by The United Nations General Assembly which“Calls upon all States to address security concerns on the Internet in accordance with their international human rights to ensure the protection of freedom of expression, freedom of association, privacy and other human rights online, including through national democratic, transparent institutions, based on the rule of law, in a way ensures freedom and security on the Internet so it can be a vibrant force that generates economic, social and cultural development”.
The right to access the internet enables the right to free speech and expression which enhances personal liberty and individual freedom. Curtailment of Internet abrades the principles laid down in Article 19(1) (a) which guarantees the right to freedom of speech.  
Violation of the Principle of Proportionality
The Supreme Court in the case of Modern Dental College and Research Center v. State of Madhya Pradesh analyzed that the principle of proportionality is inherently embedded in Article 19 of the Indian Constitution. It stated (a) A measure restricting a right must have a legitimate goal, (b) It must be a suitable means of furthering this goal, (c) There must not be any less restrictive but equally effective alternative and (d) The measure must not have a disproportionate impact on the right-holder. When a constitutional right is restricted it should adhere to the notion of ‘proportionality’. A restriction is constitutional when it is proportional. The limitation of constitutional rights is determined by the purpose which is weighed against democratic values and assessment of proportionality. This was further elevated in K.S Puttuswamy v. Union of India under Article 21 of the Indian Constitution. It laid down the tests to be fulfilled for the restrictions of fundamental rights. The three-fold requirement is (a) existence of a law, (b) a legitimate State aim, (c) and proportionality. The test of proportionality scrutinizes restriction imposed on a right holder and determines whether the measures are disproportionate and if there was a possibility to adopt less intrusive measures. The state is responsible to identify the miscreant, and it cannot stop the normal functioning of an entire region. Restrictions on selected social media platforms such as Facebook and Whatsapp which are used to spread misinformation could have been applied in this case. Suppose a train passes from the Kashmir region and the population of the region is around ten people. The train was vandalised by two people and the government banned the railway services for the whole region instead miscreants should have been identified. The State should create a balance between the exercise of fundamental rights and restrictions. The Constitution guarantees the freedom of speech and expression and the state is not permitted to curb those rights without any rational thinking. 
Furthermore, the implementation of shutdown does not fulfill any purpose of bringing peace rather it disrupted access to healthcare facilities, schools, and colleges. The state argued that the purpose was to stop miscreants and spread fake news but was not able to provide any actual evidence that the internet is being misused. Internet shutdowns in Kashmir have crippled the economy and communication blockade has resulted in huge job cuts in the private sector. The state should have identified the miscreant and objectives could have been achieved through the less restrictive measure. Shutting down the internet does not curb the violence rather it creates panic and hysteria amongst the civilian. More strikingly an internet shutdown has increased in the wake of protest against the government and it seems that it is controlled by the political and executive whims which hold hostage the right to speech and express dissent of the people in a state.  The hidden motives are silencing the opposition and dissent which is not healthy in a democratic country disrupting the smooth functioning of the state at large and also impinges the fundamentals of democracy.
The Kashmir Internet shutdown was a preemptive strike on the notion of freedom of speech and expression. The greatest virtue of humanity is represented by fundamental rights and empowering people to express their views and dissent. Liberty and security are intertwined in the framework of national security. A government should legitimize and underpin the state security policy and should strike down a balance between liberty and security so that the right to life is secured. While in the case of Kashmir, an ultra- strong executive combined with the forces of political interests in the name of national security, violated the constitutional principles and rapidly brought Indian Democracy to the brink of survival.After nine months of violation of the fundamental rights, judiciary intervened and declared that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of the internet enjoys constitutional protection under Article 19 (1) (a). Ironically Kashmir is still fighting for the restoration of 4G services and there is a glimmer of hope that freedom of speech and expression through the internet does not remain a distant dream.


Ashish Kumar is a first-year law student at Hidayatullah National Law University, Raipur.
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