Jammy & Kashmir: Stuck in a Pre-Internet Era

The prolonged denial of access to internet in Jammu & Kashmir is a grave human rights violation which deserves more of our attention.

By Aastha Asthana and Utsav Garg *

The internet shutdown imposed in the erstwhile state of Jammu & Kashmir [“J&K”] on 5th August, 2019, which enteredits 200th day beginning this March, is now officially the longest shutdown imposed in any democracy all over the world. It was enforced after the Parliament read down Article 370 of the Constitution of India [“Constitution”], whichpreviously granted autonomy to J&K. While the Government of India staunchly believes that the blockade is necessary to curb unrest, it has led to grave human rights violations.

The blockade has severely impacted day-to-day lives in J&K. People from Kashmir travel 400kms daily to a town called Banihal, to access internet. Journalists are unable to report and human rights groups have been threatened with abuses. Academic pursuits for research scholars and university students alike have frozen. The United Nations has called this blockade a violation which is “inconsistent with the fundamental norms of necessity and proportionality.” The worst hit by the blockade is healthcare, due to medicine shortages, cancelled operations and increased deaths because of a lack of treatment for chronic illnesses. What is more, is that the lockdown is exacerbating the medical crisis unleashed in J&K by the Covid-19 pandemic. The lack of access to the internet has severely undermined the ability of the medical community to fight the pandemic.

In this article, we critically analyse the guidelines issued by the court in Anuradha Bhasin v. Union of India and subsequently we examine the failure of the state to implement the same.

Anuradha Bhasin v. Union of India

On 10th January, 2020, the Supreme Court of India, in Anuradha Bhasin v Union of India, pronounced its judgment on the constitutionality of the internet shutdown in J&K. The Petitioner contended that the shutdown illegally restricted her right to free speech and freedom of press. She argued that the well-established proportionality test, which provides that restrictions on these rights must be strictly proportional to the legitimate goals being pursued by the State, had been violated. Highlighting threats to national security due to terrorism in J&K, the State in its response, maintained that it was not bound by the proportionality standard. The Court noted that the State had imposed an indefinite, blanket prohibition on internet access, through certain executive orders, which had not been published. Holding various aspects of the shutdown to be unconstitutional, the Court issued certain directives to the State. A number of these directives, however, have not been complied with.

First, the Court mandated the publication of all executive orders, with reasons justifying shutdown, in order to enable their judicial review. Further, the Court ordered a weekly review of all such orders by a Statutory Review Committee. However, there is no record of the State’s compliance with these directives in the public domain till date.

Second, while upholding the proportionality standard, the Court held that neither an indefinite shutdown, nor a blanket prohibition on all websites was permissible. In re, the State has allowed the general prohibition to remain in force, while selectively whitelisting certain websites, which can only be accessed only over 2G networks. This approach of the state fails to comply with the proportionality test. The State must lift the general prohibition, and must ban only such websites which can be shown to have a nexus with the objective of protection of national security. Furthermore, even this limited prohibition must be accompanied with measures to ensure that the requirement for the prohibition is nullified soon. Additionally, restricting internet access to the sluggish speeds of 2G networks unreasonably restricts considerable internet functionality. This farce of internet access must be replaced with access over contemporary 4G networks.

Pertinently, the State blocked Virtual Private Networks (VPNs), when residents began using these in order to circumvent low internet speeds. Moreover, the State is allegedly collaborating with technology giant, Cisco, to develop a firewall to prevent people from accessing prohibited social media websites. Evidently, more resources are being utilised to restrict access, than easing access or to ensure that the requirements for the shutdown are neutralised.

The Right to Freedom of Speech & Expression

In 1946, the United Nations General Assembly recognised freedom of information as a fundamental human right and as “the touchstone of all the freedoms to which the United Nations is consecrated.” Eventually, this right encapsulated into the right to freedom of expression under Article 19 of the Universal Declaration of Human Rights and Article 19(2) of the International Covenant on Civil and Political Rights in the coming years. Receiving information without state interference and to be able to voice ones’ opinion freely, is what constitutes such a ‘freedom’. The internet, by the virtue of being the “most powerful and potential source of enlightenment” that facilitates this right, has firmly established itself as a platform capable of ensuring the continued enjoyment of this right.

The Constitution, under Article 19, recognises certain rights to be inherent in all persons. Specifically, Article 19(1)(a) guarantees the right to freedom of speech and expression to all its citizens. The same Constitution has also established the state machinery, to provide for the realisation of various goals, foremost amongst which is the full realisation of individual freedoms. Restrictions by the state, on a particular Constitutional right of certain people, is justified only in the ends of providing greater protection to the rights of the collective. In this sense, the state acts only as the medium for the full realisation of the citizens’ freedoms.

In the same spirit, threats to national security must be understood as a violation of the rights of the populace at large. It is, then, the duty of the state to take every possible measure to nullify such threats, with minimum interference of the legitimate enjoyment of rights by the people. In the case of J&K this would require the state to proactively understand the local sensitivities, frame policies, engage with all stakeholders and invest resources to bring about a satisfactory end to public order disruptions.

Conclusion

The internet facilitates the achievement of democratic goals in various ways. In a political sense, it empowers an exchange of information and formulation of our opinions. It helps us in debating policies, constructively criticising governmental actions and ensuring accountability. This is done, in no small manner, by the media, which maintains its most significant presence in the cyberspace. Needless to say, these goals form the very essence of a constitutional democracy with a representative government. In an economic sense, the internet has emerged as the central infrastructure over which the most productive transactions take place. It would be nearly impossible for any sector to exist, let alone operate at full efficiency, in the absence of internet access. Furthermore, in a social sense, the internet is an essential tool for supporting modern education, healthcare, routine communication and cultural development. Providing for progressive development in contemporary times requires protecting all this, and much more.

The internet is both, a tool for accessing information and a medium allowing free expression. While Anuradha Bhasin, sought relief on both grounds, it is the continued denial of the former that has led to severe human rights violations in the region. This draconian shutdown has caused tremendous economic loss, while crippling essential areas of socio-economic welfare such as education, healthcare, banking, utilities and governance. Additionally, the State’s brazen contravention ofthe Supreme Court’s directive has taken the shape of a constitutionally impermissible restriction on dissent.

With every aspect of our lives encapsulated in cyberspace and the internet’s ever-increasing significance, it can only be hoped that the State begins treating internet access as a prerequisite, and not a hindrance, to development and stability.

*

Aastha is a B.A., LL.B. student at the National Law University, Jodhpur, India. She is interested in policy and legal research in the domains of public law, human rights and climate justice.

Utsav is a B.A., LL.B. student at the National Law Institute University, Bhopal, India. He takes an active interest in the study of constitutional law and judicial approaches to human rights.