On 10 January, a Bench comprising Justices N.V. Ramana, Subhash Reddy and B.R. Gavai, in Anuradha Bhasin v Union of India and Ors., held that the suspension/restriction of internet services should not be done in a disproportionate way. Thus, the Court held that the degree and scope of restrictions had to be proportionate to the situation that the Government was trying to address. In order to ensure that the Government does not impose such restrictions indefinitely, the Court had directed a Review Committee to undertake periodic reviews of such suspension orders.
This order had come in the context of internet restrictions imposed in Jammu & Kashmir (J&K) in the aftermath of the abrogation of its special status. Further to the order, although some restrictions were eased, 4G mobile internet services remained suspended in J&K. A batch of petitions was then filed in the Supreme Court seeking restoration of 4G mobile internet, especially in light of the COVID-19 pandemic.
On 11 May, the same 3-judge Bench which delivered the judgment in Anuradha Bhasin, disposed of these petitions. Although the Court did not direct restoration, it directed the setting up of a Special Committee to look into the grievances of the Petitioners. A more detailed breakdown of this judgment may be found here.
Here are 3 must reads on the judgment:
1. Supreme Court’s order on Kashmir internet shutdown: Judicial abdication or judicial restraint?: Writing for the Times of India, Sarvjeet Singh, Executive Director of the Centre for Communication Governance, tries to identify if the judgment has managed to apply the principles laid down in Anuradha Bhasin. After giving a summary of the arguments advanced by the parties, Sarvjeet concludes that, by failing to explain how national security is a factor in the present case, the order fails to apply its own principles in Anuradha Bhasin.
Nevertheless, the writer identifies a silver lining to the judgment. He observes that although the order “does not provide immediate relief to the residents of J&K, this judgment like Bhasin is a little step forward in making internet shutdowns in India more transparent, proportional and accountable”. This is because the order has directed the Special Committee to look at the alternatives suggested by the Petitioners, including lifting the 3G/4G restrictions from certain areas.
2. SC quoted jurist Ronald Dworkin in passing. Kashmir 4G order shows it must read him in full: Senior Advocate Salman Khurshid, who was also a lawyer in the case, invokes American philosopher Ronald Dworkin to identify the shortcomings of the judgment. He starts off by noting that the issue which gave rise to the initial litigation - Anuradha Bhasin - was the removal of special status for J&K and the anticipated public reaction to it. But, as per him, the focus of the matter now seems to have arbitrarily shifted to terrorism and how the fight against it may be hampered if internet is restored.
Khurshid then goes on to assert that a constant attempt by the Court to balance individual rights against other competing interests like national security, as in the present case, may make rights illusory. Invoking Ronald Dworkin, he concludes that while ‘Extreme exigencies and imminent and grave threat obviously require some qualification or special regulation’ it should be done ‘without undermining dignity’.
3. The Supreme Court’s 4G internet order: Evasion by Abnegation: Writing for the Indian Constitutional Law and Philosophy Blog, Advocate Mihir Naniwadekar describes the judgment as an instance of ‘judicial evasion by abnegation’. Unlike some of Court’s earlier orders, which merely adjourned its decision, the present judgment not only failed to make a decision but also left it to an executive body to make a decision, notes Mihir. The author observes that, in light of the language in Article 32, such evasion cannot be justified and the Court was duty bound to deliver a decision.
In the latter part of the post, Mihir Naniwadekar casts doubts on the authority of the Special Committee to adjudicate what are essentially questions requiring application of judicial mind.