The Supreme Court’s decision in Anuradha Bhasin’s case, popularly known as the Kashmir internet case, is like a weak Wi-Fi signal—exasperating but not without utility. In broad principle, it strikes at the root of executive overreach, where at the slightest apprehension of breach of law and order, the administration resorts to indiscriminate shutting down of internet services, or blanket bans on public assembly under Section 144 of the Criminal Procedure Code (CrPC). The judgement requires executive action, in such cases, to be well considered, proportionate and restricted to smaller lengths of time.
The judgement insists on constant administrative review to justify the extension of such internet bans and requires the executive to render its reasons for continuance of the ban into writing, and to reveal it in the public sphere. Significantly, it has refused to take at face value, expansive interpretations of national security justifications that were offered at the bar by the government. It has criticized the government for failure to produce detailed ban orders that restricted movement of people and their access to the internet. The judgement has, thus, prescribed an ecosystem of reasonable restrictions, reasonably exercised for restricted periods of time.
In the case of restrictions on public assembly under Section 144, the court has held that blanket bans to suppress dissent are simply not possible. It has restricted the use of the section law to cases of genuine emergencies. The restrictions must be in writing and publicly communicated. The procedure cannot be used as a tool for suppressing democratic rights. All action must be proportionate, and least intrusive to citizens’ rights.
However, after laying down a detailed architecture for use of controlling powers and for judicial review of such cases in the future, the court has, for the present, restrained itself from immediately striking down the restrictions that continue to exist on the people of Kashmir. It has, instead, preferred to leave it to courts of a future day to take action in cases of disproportionate bans, extended indefinitely without adequate material.
Critics say the judgement shows the court that has again failed to give immediate relief to citizens. Such criticism ignores precedents that bear witness to the Supreme Court’s preference for doctrinal correctness over actual relief to parties before it. In the post-emergency period, the great principles of fairness in action were settled by Justice P.N. Bhagwati in cases like Ramanna Dayaram Shetty and Maneka Gandhi, where the operative order gave the petitioner no relief. When a senior advocate asked Bhagwati about the dichotomy between the reasoning and the relief, the judge explained that his brother judges were only concerned with relief being denied in those cases. As long as Bhagwati followed their lead on the relief, he got to write the judgement and lay down doctrines of law that continue to operate deep into the future. Every lawyer who today wins on the basis of the Shetty and Maneka judgements owes his victories, in no small measure, to Bhagwati’s foresight.
On balance, I suggest that the doctrines in Bhasin’s case will age well with time and frequent use. As this piece goes to print, comes the welcome news that internet restrictions in Kashmir have been further eased. To cite Robert Browning’s poem Rabbi Ben Ezra, the doctrines may yet “come grow old with me, the best is yet to be".
Sanjay Hegde is a senior Supreme Court advocate.