On Monday, the Supreme Court of India reserved orders (when this column was being written) on a bunch of petitions that had challenged internet restriction orders in Jammu & Kashmir. The petitions had particularly mentioned access to health services and online education during Covid-19 lockdown as grounds for removing the restrictions.
The arguments on behalf of the petitioners were put forward by counsels Salman Khurshid, Huzafa Ahmedi and Soayib Qureshi. To my understanding, the grounds on which the impugned orders were challenged and disputed are not going to move their lordships, the honourable judges of the Supreme Court. No favourable decision will come, given the fact that national security is a holy cow which eats and digests fundamental rights in contemporary jurisprudence. The legal balance between national security and fundamental rights in this part of the world has always tilted towards the former.
Unfettered Power of State
The most pertinent question that was altogether missing in the petitions was whether the State has unlimited and unfettered power and authority to keep internet (as a mode of accessing or exercising fundamental rights, if not a fundamental right itself) in abeyance? How long can the State restrict access to the internet, for a short or a long period of time, or indefinitely?
Restricting Fundamental Rights
The state cannot restrict any fundamental right unless there is a law which has been passed by the legislature or a rule framed by the executive that enables a restriction. The rules made for the purpose of restricting internet speed fall under the Indian Telegraph Act. Those rules come under ‘Temporary Suspension of Telecom Services Rules, 2017’ and they don’t put any cap on the time duration for imposing such restrictions or suspending internet altogether.
The ‘Temporary Suspension’ rules could have been put to face legal scrutiny and judicial test, given the fact that only in the case of declaration of an emergency can fundamental rights be suspended indefinitely. These rules tantamount to giving emergency powers to the state even in times of normalcy. It is pertinent to note that even an emergency remains in force for a period of six months from the date of proclamation. In case it is to be extended beyond six months, another prior resolution has to be passed by Parliament. In this way, such emergency can continue indefinitely.
The question which should have been raised by the petitioners is: whether the powers exercised under this rule can be misused, exercised arbitrarily, discretionally and on whim and caprice, given the fact that there is no cap on the maximum time period for putting such restrictions. In Anuradha Bhasin v. Union of India (2019), the Supreme Court of India observed, “The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules.”
Further, reasonable restrictions to fundamental rights are exceptions, and not the law of the land itself. The restrictions cannot be put for an indefinite period of time without justification. In Anuradha Bhasin v. Union of India (2019), the Supreme Court of India held that “Any order suspending internet issued under the Suspension Rules must adhere to the principle of proportionality and must not extend beyond necessary duration.” It is obvious that the parameters observed for suspending internet are applicable to restrictions also.
Internet: A Fundamental Right
Coming to the last, but fundamental question, whether internet is a fundamental right or a means to exercise a fundamental right? It is imperative to say that liberty to exercise a right does not simply connote choice and freedom to exercise that right. The liberty includes within itself absence of restraints and constraints, and existence of such conditions that enable the exercising of this right and freedom.
Absence of restraint and constraint is a negative liberty which is necessary to enjoy positive liberty, i.e, freedom. It applies to all fundamental rights and liberties, be it freedom of speech, right to information, right to education, right to health, right to life, etc.
The Supreme Court of India declared in Anuradha Bhasin v. Union of India (2019) that freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g).
Thus, even if internet is not declared a fundamental right, the speed restrictions on it constitute such restraints and constraints that the above-mentioned rights related to the internet cannot be exercised. Whether the courts declare internet as a fundamental right or not, the means to exercise fundamental rights and providing ways to bring about existence of conditions to facilitate such rights is itself a right (if not fundamental).
The writer is a law student at Central University of Kashmir. [email protected]