The court has created a jurisprudence on the use of the internet and Section 144 but has not gone the whole hog in enforcing it.
The Supreme Court judgement on internet and Section 144 of the CrPC, delivered on two petitions relating to the situation in Jammu & Kashmir, has enunciated welcome principles and laid down sound guidelines but has not given any actual relief to the people who have suffered due to the arbitrary and excessive exercise of power by the government. The court has held that the use of the internet as a medium for free speech and for trade and commerce has constitutional protection. It also said that Section 144 can be used only in an emergency situation and not to “prevent the legitimate expression of opinion or grievance or exercise of democratic rights.” The court wants the exercise of executive powers to be proportional to the requirement and has expressly barred any secret orders. It was unhappy with the government for refusing to produce orders imposing restrictions on the internet and on the freedom of movement in J&K.
These are great assertions and the court has, as it has often done in the past, expanded the frontiers of citizens’ rights and underlined their importance. But it has stopped short of taking any action that should logically follow from its endorsement of rights. It said the restrictions on rights could not be indefinite and cannot extend beyond necessary duration. But it did not strike down the restrictions which are in force in Kashmir for over five months though the government could not produce any justification for them. It only gave a direction for a review of all restrictive orders in the next one week. While ordering the government to consider immediately the restoration of the internet in certain facilities like banks and essential services, the court assumes that the general lockdown will continue.
The court has created a jurisprudence on the use of the internet and Section 144 but has not gone the whole hog in enforcing it. The judgement may be a prescriptive guide for future, but it is hardly of practical value now. What good are the rights which exist on paper but are not available to citizens when they need them? The court said the restrictions can be judicially reviewed, but it did not do so. In future, cases relating to such restrictions may result in prolonged litigation, in effect denying the rights to citizens. The order has also come very late, months after the rights were suspended in Kashmir. The court calls for every right norm from the executive, like reasonableness, transparency, accountability and proportionality, in the use of power. But the judgement may not stop a determined government from abusing its power. The court will hopefully strengthen the judgement and give it some teeth in future.