The Supreme Court has directed the Jammu and Kashmir administration to review all orders connected with restrictions in the region, as it also declared that the "access to the internet" enjoys constitutional protection under the fundamental rights.
A bench headed by Justice N.V. Ramana and comprising Justices R. Subhash Reddy and Justice B.R. Gavai, which reserved the judgement on November 27 last year, said: “We direct the state/competent authorities to review all orders suspending internet services forthwith. The competent authorities are directed to publish all orders in force and any future orders under Section 144, CrPC (Criminal Procedure Code) and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum.”
The Supreme Court issued 15 directions in its judgement, which mainly focussed addressing issues impeding access to the internet. It also stressed that the power under Section 144 of the CrPC cannot be used to suppress the legitimate expression of opinion or grievance or exercise of any democratic rights.
The verdict came against a clutch of petitions including the petition by senior Congress leader and former Chief Minister Ghulam Nabi Azad challenging the Centre’s decision to impose restrictions, which also included restrictions on access to the internet and Section 144 prohibiting the assembly of four or more people, on the erstwhile state of Jammu and Kashmir, after the revocation of provisions of Article 370 on August 5, which gave the special status to the state.
On the aspect of access to the internet, the apex court said that it declares the 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). “The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality,” it said.
The court emphasised suspension of the internet can be only temporary. “An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Suspension can be utilised for a temporary duration only,” it said. And, also the order suspending internet is bound to face the judicial review.
The court took a strong view on the undefined periodicity of the suspension rules,
“The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, we direct that the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6),” it said.
On the imposition of Section 144, the top court said that the power under the provision cannot be used to suppress the legitimate expression of opinion or grievance or exercise of any democratic rights. “An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order”, said the court.
The apex court also observed that the orders not in accordance with the law laid in its verdict, must be revoked, and in the future, if there is a necessity to pass fresh orders, the law laid down must be followed.
Besides Azad, the court had heard the petitions filed by Anuradha Bhasin, Executive Editor of Kashmir Times, and few interveners, who challenged the imposition of restrictions on the valley.
“Repetitive orders under Section 144, CrPC would be an abuse of power. The respondent state/competent authorities are directed to review forthwith the need for continuance of any existing orders passed under Section 144, CrPC in accordance with the law laid down above”, said the court.
In Jammu & Kashmir, there is optimism after the Supreme Court ruling.
Business circles in Kashmir say the Supreme Court ruling would eventually pave the way for the restoration of internet in the valley and kickstarting the stalled businesses.
“We welcome the Supreme Court ruling,” Sheikh Ashiq, President, Kashmir Chamber of Commerce and Industry said. “We are hopeful that the government will restore the internet without any delay now.”
The KCCI has published a report which said around five lakh jobs were lost in Kashmir due to the internet gag and lockdown following the repealing of Article 370 on August 5.
Internet was suspended all across Jammu & Kashmir ahead of the revocation of Article 370. While the ban on internet hasn’t been lifted in the Kashmir valley, internet has been completely restored in Ladakh. In Jammu, the broadband was restored while the mobile internet continues to remain suspended.
Syed Ashfaq, a Kashmir-based financial analyst, who was forced to retrench most of his staff and curtail his business due to the internet ban said the government should make a distinction between internet and social media.
“We welcome the Supreme Court ruling, if there are any security concerns let the government suspend social media, why is internet, on the whole, being curtailed,” Ashfaq said.
“On one hand the government says that it wants to bring in investors to the Kashmir valley but on the other hand local businessmen are made to suffer due to the internet gag, the two things just don’t add up.”
He said that lakhs of people in Kashmir have lost jobs due to the internet shutdown and businesses would find it tough to revive even after the internet is restored.
“It will take me at least two years to restart my business after the internet is restored,” Ashfaq said.
Rakesh Gupta, President, Jammu Chamber of Commerce and Industry, said the ruling doesn’t give any immediate relief to the people of Jammu & Kashmir.
He said the government has already been reviewing the security situation from time to time even before the court ruling.
“This is a vague order, there should be more clarity about the restoration of internet,” Gupta said. “Internet is not a luxury but a necessity in today’s times.”
Faiz Ahmad Bakshi, Convenor, Environmental Policy Group, a non-profit organisation for the conservation of the environment, said the real test is in the implementation of the Supreme Court ruling.
“It is a welcome step but it is for the government to implement the court ruling,” Bakshi said.
But dismissing the ruling Iltija Mufti, daughter of former Chief Minister Mehbooba Mufti, said it has taken five months for the court to say that “the internet is a fundamental right”.
“I am disappointed, I had expected the court to pull up the government,” Iltija Mufti said. “All Kashmiris are not jihadists.”
The Supreme Court on Friday said the right to access the internet is a fundamental right under Article 19 of the Constitution. The apex court directed the Jammu & Kashmir administration to immediately restore internet services connected with access to government websites, localised/limited e-banking facilities, hospital services and other essential services. (IANS)