The Supreme Court on 10 January gave a landmark judgement on the internet shutdown in Kashmir. What are your first thoughts on this?
The first noticeable feature of the judgement is the tremendous concern for constitutional rights in principle. The judgement carries very valued concepts. There are three concepts that the judgement brings out very clearly. First is the value of liberty, which is so important and not negotiable. It cannot be put in peril. The second is the importance of knowing things or having access to information and how in today’s world, the internet is such an important means of getting information. The access to internet being a fundamental right, I think is a path-breaking decision because the internet is only a means of accessing information.
The third part, of which I have seen some echoes in earlier celebrated judgements of the 1980s is a judgement that has a slightly different connotation, although on the same subject, which is on the exercise of statutory powers such as Section 144. Are they not meant to be of a limited duration? Can there be a reasonable exercise of their power? If the power is not reasonably exercised, will they not be open to judicial review? How should the government make sure that they are visible for everybody so that it can be challenged if there be need?
The judgement, according to me, is very seminal, progressive, and also not unaware of the societal interests. At the same time, it understands the requirements of protecting society against some parts of itself. Having said that, it strikes a very careful balance between rights and liberty on one hand and the need to protect citizens on the other, through the state. At all points of time, the narrative is the supremacy of the Constitution and the value of human beings.
It is a very well-written judgement. I was deeply moved by the quotation of Charles Dickens with which the judgement began. It is very strange that the judge quoted Charles Dickens because in some sense the judgement in its own narrative also has the tale of two cities.
This judgement has said that internet access should be constitutionally protected. What are your thoughts on it?
People have a right to know. When fundamental right to press freedom was treated as a part of Article 19(1)(a), it was not for the freedom of speech of those in the press but also a way for people to gain information from the press. The press and people have always been intertwined for the purpose of information. Over a period of time, information has become the need of the hour. The Right To Information Act was enacted to enable greater transparency. With greater mobility of technology, artificial intelligence and modern algorithmic behaviour, there has to be a catch up with technology as well. This judgement is somewhat farsighted. There are many undercurrents in the judgement.
What according to you will it take to make it a fundamental right?
It is an incipient right of human dignity and equality before the law. This right will also play out like any other fundamental right, subject to reasonable restrictions. What restrictions will be reasonable are mentioned in the Justice Nariman’s judgement in Shreya Singhal case, which was a major decision where he says a free marketplace of ideas is so important for society. It is also somewhere echoed in this judgement.
The judgement is not questioning the right of the government but the extent to which the government can shut down internet. It has also made a shutdown subject to judicial review. Do you think the judgement is balanced? Or does it transgress into the powers of the government?
This judgement has not transgressed into the powers of the government. The judgement towards the end follows a very celebrated judgement of the 1980s, which was authored by Justice A.P. Sen. In that case, the judgement was that the court can say that the records are not sufficient but there is a mandamus for you to review your actions. The court said that if you still want to publish any order under Article 144, make sure it is done transparently for people to know and with a possibility of a challenge to those orders. It is not a transgression on the domain of the executive. On the contrary, the judgement reflects all the submissions of the government noted, taken into account and a very balanced conclusion being brought in.
The court held that orders under Section 144 of the CrPC for suspension need to be published to enable the affected person to challenge it. How important do you think is this decision for transparency?
This judgement gives people a very strong sense of locus poenitentiae about their rights, that is people are not simply constrained. They now have the knowledge of how they are being constrained, why, and under what law. They also have access to judicial review.
The judgement speaks of a chilling effect in the context of freedom of the press. What is your take?
This is very important. This is a Constitution theme that fearlessness is the hallmark of dignity, fearlessness of thought, access to ideas and debate are all a part of the constitutional ethos. It is also a part of the Indian ethos. They always give root for research and debate. Chilling effect is when the enormous spontaneous being of citizens who want to be in touch with ideas, speak out ideas, debate ideas are simply robbed of that spontaneity and are ushered into a state of fear. The judgement therefore, once again, emphasized that the spirit of the Constitution is always to enable a state of calm fearlessness, a fearlessness that is not unrested fearlessness but a calm fearlessness where you are able to speak and where you are able to experience the knowledge of ideas.
For a judgement like this what is the way forward? What actions can be taken by the government?
I believe that the government will respect the judgements of the court. I think that we are in an era where the government also understands the importance of judgements and thoughts, which are expressed. We should always have a very strong hope that governments are positive. If we are not of that strong opinion that governments can change its views, that the government can review its decision, that governments can act in a progressive manner, then we are also not helping the growth of our own society. This has nothing to do with any political colour. In principle, we must have an understanding of the dynamics of the government.