The sentinel has awaken
Should not exactly be surprising as it comes but the Supreme Court rising from its slumber to order reviewing of restrictions imposed in the Union Territory of Jammu and Kashmir indeed is a fresh surprise. The top court jumped out of spectator mode and picked up the issue of fundamental rights being curbed under the internet shutdown in Kashmir since August 5. Projecting internet access as an integral part of freedom of speech and expression — Article 19(1)(A) of the Indian Constitution — the Supreme Court ordered the Jammu and Kashmir administration to review within a week all restrictive orders in place since the government repealed the erstwhile state's special status. Supreme Court's order had some bold and morally-enriching statements wherein it said that "suspension of free movement, Internet and basic freedoms cannot be an arbitrary exercise of power". The court's observation was precise vis-à-vis the Kashmir lockdown albeit late. Petitions filed by Kashmir Times editor Anuradha Bhasin and Rajya Sabha MP Ghulam Nabi Azad saw fruition but to an extent. What remained in limbo was the Supreme Court's order to lift all restrictions immediately. If the top court took cognisance of constitutional wrong being facilitated in Kashmir, resorting to a review does not fit the narrative. Moreover, a review by the administration that put restrictions in the first place also piques curiosity. The court could have simply lifted restrictions citing infringement of fundamental rights — what it itself stated as a moot point — rather than waiting for a review report in a week's time. But for those victims of the longest internet shutdown in the history of any democracy — 160 days and on — even the Supreme Court's cognisance of their snatched freedom meant the world. On the pretext of security, Kashmir Valley had to bear an indefinite internet shutdown which undoubtedly disrupted business as usual. Being a pivotal tool for business today, the internet's shutdown was most unfortunate in the region as some trade bodies even estimate a loss of $1.39 billion in the first 100 days itself. And, it is believable as Kashmir's tourism can alone yield a lot of business. Supreme Court's further observation that "a mere expression of dissent or disagreement against the government decision cannot be the reason for internet shutdown" is where the pain point lies. With India's internal developments following the scrapping of special status on August 5, dissent has been the reason for most internet shutdowns in the country. Appropriately, the top court asked the J&K administration to put all restrictive orders in the region over the past five months in the public domain so that they can be challenged. This along with court's cautionary note that suspension of internet services must be subject to review forthwith serves for a public interest which has remained with unanswered questions pertaining to shutdown since August 5. The court apprised the administration that such suspensions can only be imposed for a short period and will be subject to judicial review. The court concluded this subject by stating how the government's step to completely ban the internet must be brought in effect only as an "extraordinary measure". In these observations, the Supreme Court subtly ensured containing further arbitrariness from the government and emerging once again as the supreme custodian of Constitutional Rights.
But not before all was said, SC's criticism of arbitrary exploitation of Section 144 — Colonial law banning public assembly — in the erstwhile state marked the cherry on the cake. The court here observed that Section 144 cannot be used as a tool to oppress difference of opinion — off late an unfortunately common phenomenon in the country. It elaborated how orders passed under Section 144 bear direct consequences upon the Fundamental Rights of public and cautioned how a misuse would amount to severe illegality. This piece of observation makes for special mention since the country has been experiencing an ominous rise in use of the colonial law to prevent protests as well as discussions, leading to suppression of dissent; Uttar Pradesh is a case in point. While cries for revising the Indian Penal Code — in a bid to rid it from colonial laws that were used by the British to suppress Indian agitation — have largely fallen on deaf ears, Supreme Court's observation raises hope for some relief. It paves the way for challenging the government's arbitrariness in imposing Section 144, largely to curb protests — as seen in student agitation against CAA-NRC — and demand a response which is barely ever provided to public otherwise. Resuming internet services in the state remains the next step as the government prepares a review of its own doing. The apex court's order will serve as a precedent to challenge arbitrary curfew that establishment has resorted to more often than not in its bid to simply suppress dissent in this country.