In a much-awaited judgment, the Supreme Court (SC) has finally ruled on the constitutionality of the restrictions in place in Jammu and Kashmir since August. The court’s order is laudable in principle(Amal KS/HT PHOTO)
In a much-awaited judgment, the Supreme Court (SC) has finally ruled on the constitutionality of the restrictions in place in Jammu and Kashmir since August. The court’s order is laudable in principle. It has made it clear that freedom of speech through the Internet and the freedom to practise any profession, which depends on the Internet, encompasses the freedom to access the Internet — and this makes it a fundamental right (by extension). This builds on a Kerala High Court judgment that declared the right to Internet a fundamental right. This is particularly important since India has now seen the longest Internet blackout in any democracy in the world. The court has also asked the Centre to produce orders — which it was unwilling to do — justifying the use of Section 144 and other restrictions, and said these are subject to judicial review. It has added that these restrictions on rights cannot be indefinite. It has called for the immediate resumption of essential services such as hospitals, government websites and banking. And it has asked the competent authority to review other restrictions within seven days.
This will elicit a sigh of relief from residents of the Valley as well as strengthen the fundamental architecture of civil liberties in India by laying out a strong precedence in jurisprudence about what the executive can do, and cannot do, even as it seeks to strengthen security. With its order, the apex court has opened the door for restoration of normalcy in Kashmir. At a larger level, the ruling sets precedents that make the Internet shutdown process more transparent, ensures that there can’t be indefinite shutdowns, and actually specifies a time-frame for a review (seven days).
But there are two concerns which merit attention. The first is timing. The apex court has taken over five months to lay out these principles. Civil liberties must be of the highest priority, and this reflects a certain degree of abdication of responsibility, for through this period, Indian citizens have had to live with curtailed rights. The SC’s judgment also does not provide immediate relief. It leaves the door open for the executive to argue that these orders are justified on security grounds, and for another, perhaps prolonged, legal process for the full resumption of rights. The SC should have built on its own principles to provide for immediate restoration of rights. But the good news is that by opening the door for liberty, it has strengthened democracy.