The internet facilities in the Union territory of J&K were restricted even before COVID-19 came into existence. They have been shut on and off very often during the revocation of the special status of the then state and prior to it as well. The administration implemented these restrictions citing the security concerns and for maintaining the public order. However,these restrictions had been recently challenged before the Hon’ble Supreme Court of India through various writ petitions wherein the State took the defence of national security to implement these restrictions on the widely used fast internet. When the same was argued upon before the Hon’ble Supreme Court of India, the objections taken and the responses so given were regarding the overall violation of human rights with Right to Health, Education, Business, and Right to Freedom of speech and expression being at the centre of the discussion.
The order of the Supreme Court dated 11th May of 2020 recognizes the need for fast internet but at the same time stresses on the need to balance it with national security. While not agreeing that the whole Union territory was hit by the surge of militancy, the court did oppose the blanket orders for restrictions to the whole of Union territory resulting in the formation of a Special Committee consisting of only executives of the state machinery both at the centre and the Union territory. The court while doing so took the precedence from the Anuradha Basin judgment[1] which for the similar reasons provided for the constitution of a review committee. It is no less than an irony that how the order passed by the Hon’ble Supreme Court accepts the desirability of fast internet in recent times but at the same time highlights the use of the internet in “modern terrorism” alluding a comprise on the fundamental rights of the citizens, by restricting the internet facilities to the masses rather than posing the responsibility on the state to maintain the balance by keeping the fundamental rights unfettered to the very extent possible. It is also opposed to the scheme under the Constitution of India that the Fundamental Rights are not mere Rights but the duties of the state towards its citizens as upheld in the case of Olga Tellis v. BMC[2].
Fundamental Rights in the Constitution of India holds a sacrosanct position. Any attempt to vitiate the enforcement of these rights is a direct assault on the very foundation of the Constitution unless the same has been carried out in accordance with the procedure prescribed in the constitution. It is now important to mention that other than the rights mentioned above, there are many other Fundamental Rights in the Constitution whose application is either restricted by the same article in the Constitution or the other way to restrict the enforcement of these rights is Article 359 which is only applicable during the emergency as mentioned in Article 352. It is not only our Executive that is worried about the national security but the makers of the constitution did very well foresee the possible situation where these rights would take a back seat in the overall interest of the nation and thus created appropriate safeguards against misuse. Therefore, restricting these fundamental rights either directly or indirectly, except in accordance with the prescribed procedure in the Constitution shall not be only undemocratic but unconstitutional to its core. The enforcement of the basic rights of the citizen at the whim and caprice of the executive is completely unacceptable.
Similarly, the Hon’ble Supreme Court in the Puttaswamy judgment[3]did not shy away in recognising the bedrock of the Republic of India and said, while overruling the majority view in the case of ADM Jabalpur v.Shivkant Shukla[4], that-
“A constitutional democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights.”
Also, in the case of Swapnil Tripathi v. Supreme Court of India[5], the Hon’ble Supreme Court did recognize that the ‘access to justice flows from Article 21 of the Constitution’. Article 21 being recognised as the indefeasible part of our Constitution constitutes the cornerstone of our Constitution which guarantees protection to life and liberty of every person in the country. It is both unfortunate and disheartening that even after such elaborate judicial pronouncements by the Supreme Court, the same are not being enforced.
The Articles 32 and 226 of the Constitution of India are the enabling provisions for the enforcement of fundamental rights in the Hon’ble Supreme Court of India and the High Courts in the country respectively. While the former explicitly ‘guarantees’ the enforcement of the fundamental rights, the latter has even wider jurisdiction to enforce any legal, constitutional, and statutory rights. In simpler terms, these articles are the very pillars of the Constitution of India and any hindrance caused in the normal functioning of these articles except in accordance with the procedure prescribed in the Constitution would mean a direct assault on the basic framework of the constitution. Unfortunately, the restrictions in the fast internet facilities have made the justice delivery system in the Union territory of J&K a casualty. Despite the robust efforts from the Hon’ble High Court of the Union territory, it is practically impossible to reach anywhere near to the standard required to effectively deliver justice as required by the Constitution especially in these extraordinary times of COVID-19. It is true that in its attempt to secure the same principle of ‘access to justice’, the High Court has kept its doors open for the public. The question here now is that, isn’t the state risking the lives of all those people who have been already deprived of their fundamental, constitutional, legal, or statutory rights by compelling the litigants who lack the fast internet facility in the face of the unreasonable restrictions, to go to the courtroom physically while compromising with the safety/security of both the litigants and the High court staff.
The conclusion to this unimaginable yet daily occurring situation is that the Executive should recognize the mistakes that it has caused while enforcing public order in the whole union territory. It should recognize the hardships it has created for the public in general while putting up a blanket restriction in the whole of the union territory rather than putting hardships on itself to meticulously target such areas and parts of the union territory which are in the active state of threat and require such extreme measures. If the Executive fails to do so, then the Judiciary should step in as it has done from time and again to protect the basic structure of the Constitution of India. Agreeing to every time for the defence of national security’ in the absence of any cogent argument by the executive is not the way forward.
By-
Amrit Koul
Amity Law School, Delhi (GGSIPU)
[1]Anuradha Bhasin vs Union Of India on 10 January 2020
[2]Olga Tellis & Ors vs Bombay Municipal Corporation &Ors. Etc. 1986 AIR 180
[3]Justice K.S.Puttaswamy(Retd) vs Union Of India on 24August 2017
[4]ADM Jabalpur v Shivkant Shukla, 1976 AIR 1207
[5]on 26 September 2018