10/01/2020 2:57 PM IST

Supreme Court Stands Up For Internet Access, Just Not For Kashmiris

Kashmir has now spent 159 days without proper Internet. The Supreme Court has side-stepped the whole point of the petitions to restore services, lawyers said.

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BENGALURU, Karnataka — The Supreme Court of India declared that the right to access the Internet is a fundamental right—but stopped short of ordering the immediate restoration of Internet services in Kashmir. On Friday Jan 10, Justice NV Ramana said the court would not delve into the political intent behind the orders as he read out his orders . 

The court stated that Internet suspension without any particular duration and indefinitely is a violation of Telecom Rules, and has directed the administration to review all orders of restrictions in Kashmir within a week. You can read the full judgement here

The Modi-government imposed internet shutdown in Kashmir, now in its 159th day, will be reviewed under the Telecom Suspension Rules, 2017. 

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“The judgement will need to be studied and may give grounds for challenge in future to the rules,” said Apar Gupta, a lawyer with Internet Freedom Foundation, a digital rights advocacy group told HuffPost India. “From what has been posted here It  seems it does not do much and the present status quo will continue in Kashmir.”

“The only effective order at present seems to be an administrative review of the Internet shutdowns, which almost seems that the primary function of judicial review has been avoided by the Supreme Court,” Gupta added.

The Internet Freedom Foundation also noted some highlights from the judgement, tweeting, “State should disclose all section 144 orders and Internet shutdown orders proactively. If it wants to claim privilege it must specifically do so on affidavit. All existing and future orders to be published to allow aggrieved persons to challenge them.”

“Internet shutdowns cannot be ordered to suppress speech unless there is incitement to violence or similar reasons. Indefinite suspension of the Internet [is] not permissible. Periodic review must be conducted in accordance with Telecom suspension rules.”

“Today the Supreme Court of India has finally put an end to the dubious practice of using Section 144 Criminal Procedure Code to shut the Internet down. This had become a norm in the past few years, regularly used by Police and State Governments that had made India the shutdown capital of the world with around 381, disruptions since 2012,”  said Mishi Choudhary, Technology Lawyer and Managing Partner, Mishi Choudhary Associates. “Although the order grants no immediate relief to the people of Kashmir who have been without internet for the past 159 days, review under Telecom Suspension Rules has been ordered.”

Choudhary noted that these rules, known as the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, were issued under the Indian Telegraph Act, 1885.

“According to these rules, an order for suspension of telecom services can be made by a ‘competent authority’, which for the Government of India would be the Secretary in the Ministry of Home Affairs. Incase of a state government, the Secretary to the State Government in charge of the Home Department,” Choudhary explained.

“The Supreme Court of India like the Kerala High Court has recognized the right to freedom of speech and expression through the Internet to be part of  Article19 (1) (a). This is what a Court that moves with times must hold and has done so. Hopefully, from now on authorities will follow their own rules and not circumvent procedures to curb legitimate expression,” she added.

Doctors couldn’t treat patients, students couldn’t appear for exams, many tech startups that were seen as a ray of hope in the region have faltered, caused the region economic hardship and silenced peaceful protests.

On August 5, 2019, the Union government cut-off all communication networks in Kashmir as a precursor to nullifying the terms of Kashmir’s entry into the Indian union and reducing the state into a centrally administered union territory. Tens of thousands of Kashmiris were arrested, including almost all opposition politicians.

Since then, the Modi government has gradually and grudgingly restored connectivity —  first with landlines, then with postpaid phones very recently. Internet access remains tightly controlled, making this the longest such shutdown in any democracy around the world.

Apart from the pressing question of human rights, the internet shutdown has cost the Indian economy over $1.3 billion, almost Rs. 10,000 crore by some estimates. On the ground, the impact has caused tremendous disruption to ordinary lives: Doctors couldn’t treat patients, students couldn’t appear for exams, many tech startups that were seen as a ray of hope in the region have faltered, caused the region economic hardship and silenced peaceful protests.

The court heard petitions by Anuradha Bhasin, Executive Director of Kashmir Times, and Ghulam Nabi Azad. The first petition looked at how the Internet shutdown violates the freedom of the press, while the second raised concerns about how this also cut off access to healthcare, education, and livelihood.

The petitioners argued that the restrictions were disproportionate, and that less restrictive methods should have been used. The government however said that blocking only selectively could not solve the problem as alternative platforms would end up getting used by terrorists.

In its Intervention Application, the Press Council of India (PCI) said that restrictions on communication facilities in Jammu and Kashmir have been imposed “in the interest of the integrity and sovereignty of the nation”.  

The PCI chairperson Justice Chandramauli Prasad (retd) went one step further and told HuffPost India that in his personal view, “No matter how liberal one is, it has to be faced — the fact that some news is best not reported.”