Supreme court does a balancing act with ruling on internet shutdown

Internet and 2G services were restored in Srinagar and other parts of Kashmir last week, almost six months after the government snapped communication links in the region on 5 August, when Parliament revoked the special status granted to Jammu and Kashmir under a provision of the Constitution.

The restoration of the internet, however, is not incentive enough for 28-year-old entrepreneur Abid Rashid Lone to head back to Srinagar where he once ran a flourishing IT-enabled services company. “The internet speeds are so slow. There is no way I can go back and resume my work there,” he said.

When communication links were snapped in August, Rashid stayed back for some days. However, without internet, “there was no way I could work”, he said. Rashid said he shifted base to New Delhi by the middle of August. “It has been tough to start it all from here,” he said. Even now, internet access is limited to some 350 sites and social media apps continue to remain out of bounds for the residents of Kashmir valley.

The gradual but limited return of internet services comes almost three weeks after the Supreme Court on 10 January ordered a review on the clampdown on communications and some other constitutional guarantees. The judgement, seen as path-breaking, considering that it upholds the right to communication and the internet as protected under Article 19 of the Constitution, was in response to a public interest litigation (PIL) filed by the editor of Kashmir Times, Anuradha Bhasin, challenging the lockdown in the state that the government said was necessary to prevent terrorists sponsored by Pakistan from fuelling unrest and violence in Kashmir. The current wave of militancy in Kashmir is being fuelled by terrorist groups recruiting young Kashmiris via internet and social media, Burhan Wani, a Hizbul Mujahideen terrorist killed in 2016, being a case in point, analysts said.

The 10 January judgement also came on the back of internet blackouts in Arunachal Pradesh, Assam, Meghalaya, Rajasthan, Tripura and Uttar Pradesh, after protests against the Citizenship (Amendment) Act, or CAA, which seeks to fast-track citizenship for Hindus, Sikhs, Buddhists, Jains, Christians and Parsis, who fled Afghanistan, Bangladesh and Pakistan because of religious persecution or for fear of religious persecution. There were also protests over the proposed National Register of Citizens (NRC), which seeks to create a record of bonafide Indian citizens in the country and identify illegal residents. Taken together, the CAA and the NRC were perceived by some quarters as targeted at Muslims, fanning the protests.

As many as 4,196 hours of internet blackouts in India cost the economy close to $1.3 billion in 2019, said a 7 January report by UK-based research firm Top10VPN. The report analysed every major internet shutdown around the world in 2019 that cost the global economy more than $8 billion. India, where more than 100 shutdowns were documented, was deemed the third worst-hit after Iraq and Sudan. Ironically, this comes as the government led by Prime Minister Narendra Modi is giving a major push to link villages and towns with better internet connectivity to boost e-commerce and financial transactions online through its Digital India programme.

Against this backdrop, the 10 January Supreme Court judgement is seen as novel given news reports that it upholds the right to internet as a fundamental right. However, lawyers say the judgement is more nuanced than that.

“The judgement states that the right to use internet for freedom of speech and expression and for trade or business is constitutionally protected,” said Ashok Bhan, senior advocate at the Supreme Court. “With respect to this, the judgement when talking about the ‘right to use internet’, is a part of the ‘findings’ of the case and are not ‘directions’,” he said. Findings were not enforceable while directions are, he said. “The findings can be used in future cases as precedent unless Parliament makes a law to that effect. There were no directions given to the government with respect to internet in this case.”

“If we read the judgement cumulatively and focus on the operative part of the judgement, it implies that internet is a part of freedom of speech and expression,” Bhan said. However, the judgement makes it clear that the right to internet is a constitutional right that can be altered or modified, while fundamental rights mentioned in part 3 of the Constitution cannot be changed or amended. In doing so, the judgement does not question the right of the government but the extent to which the government can shut down internet. This shows that the courts have not transgressed into the powers of the government and tried to balance the need for security with the rights of people, according to Gopal Subramanium, senior advocate at the Supreme Court.

The nuances of law, however, don’t impress people such as Lone. “For me the important thing is to run my business for which a good internet connection is a must,” he said.