“The first law of decency is to preserve the liberty of others.”
– Friedrich Schiller
On August 4, 2019 internet facilities were scrapped in the valley of Kashmir following the abrogation of Article 370. The people of Kashmir have not had access to the internet since the 4th of August 2019. Section 144 of the Code of Criminal Procedure,1973 (Cr.P.C.) was imposed on the whole of Kashmir.
The State machinery claimed that it was done to safeguard the national interest and to suppress any act of insurgency. However, the people of Kashmir have quite the opposite notion of this internet ban, they believe these restrictions deprive them of their fundamental rights and civil liberties. The Governor of Jammu and Kashmir Mr Satya Pal Malik, when confronted upon the imposition of internet ban, remarked, “If a communication shutdown helps save lives, then where is the harm? Not a single human life has been lost in many days.” The questions of the people and the response of the State boils down to the debate of security and liberty
The jurisprudence of this debate has manifested both security and liberty as two opposite poles. There exists a thread of argument that emphasizes, if security is given priority over liberty or vice versa, the other has to be compromised. However, Hugo Rosemont in an article published in The Guardian argues that it is an outdated notion and with the evolution of globalization, the meaning of security has to evolve as well. In the Indian context, the solution of this debate lies in the string of Rule of Law, which runs through the Constitution of India and broadens itself in the case of fundamental rights. The Constitution through fundamental rights governs the rule of law. Through various judgments, the Supreme Court has emphasised on the importance of these provisions of the Constitution. The question of security and liberty is quite critical and the apex court at times finds it cumbersome to strike a balance between both. The latest example where the hesitance of the court is manifested while striking a balance is, in the light of the internet shutdown in the valley of Kashmir.
In the light of Anuradha Bhasin v Union of India
In Anuradha Bhasin v Union of India, the Hon’ble Supreme Court of India pondered upon this dilemma of choosing sides. But even after looking at the draconian step by the State to deprive the entire population of Jammu and Kashmir from using communication methods, the Court failed to consider the plight of people of Kashmir. Although, the Apex court declared the internet as a medium to enjoy Right to Freedom of Speech and Expression 19(1) (a) and Right to Carry on Trade or Any business under 19(1) (g). But this interpretation seems to be very narrow and bleak. It is worthy to note that this judgment only holds the internet as a ‘medium’ to access these fundamental rights and not as an individual fundamental right in itself. Moreover, in any case where liberty to use the internet is compromised, one cannot claim it until they show a reasonable nexus between Article 19(1)(a), Article 19(1)(g) and the access to the internet. This leads to a technical vacuum that has been left open, giving the State an opportunity to use it to their advantage. To put this in simple words, this judgment acts as a safety valve; as in the same judgment the court, instead of lifting the ban, directed the State to review its own order of suspending the internet services. An analogy could be drawn from the judgment of the Right to privacy, wherein the Right to privacy was subjected to certain restrictions under which the State can override the privacy of an individual. In the Aadhar judgment, this vacuum was used to prove the legitimacy of Aadhar and how it is in line with the restrictions.
Similarly, considering the internet just as a ‘medium’ and putting it under the clause of reasonable restriction, the Court has left the apple in the basket of the State. There are no set parameters to define what falls under reasonable restriction and reasonability is a very subjective term that changes from person to person. In the wisdom of the Supreme Court, security outweighs liberty.
The apex court relied on Vinton G. Cerf, who argued that even though the internet is important, it can’t be elevated to the status of human rights. But the Court failed to consider the fact that the United Nations has recognized the Right to Access Internet as a basic human right. The court somehow missed the fact that the internet has become an integral part of the world and almost everyone relies heavily upon the internet which itself makes it a basic inherent right of an individual.
In furtherance of its judgment in Re Anuradha Bhasin, the court in Foundation of Media Professionals v UT of Jammu and Kashmir ordered to form a special committee comprising the Home Secretary, Secretary of the Ministry of Communications and Chief Secretary of Union Territory. The committee itself represents the executive body of the State and isn’t it paradoxical, the judiciary delegating the work to keep a check on the executive’s order to the executive itself?
Nevertheless, this order of the Court has been subjected to severe criticism from the legal fraternity. This order stakes the liberty of around 14.5 million citizens, who looked up to the Supreme Court with high hopes. With no access or limited speed access to the internet, citizens of Kashmir have been denied equal rights. These restrictions have not only violated the fundamental rights of an individual but have also let down the intent of the Constituent Assembly. Justice and equality as enshrined in the preamble of the Indian Constitution have been blurred for the citizens of valley. They no longer have access to economic, political and social justice. Restriction from manifesting their ideas and opinions broadly curtails social and political justice, whereas internet ban has curbed them from taking part in free and fair market competition. These violations must be stopped with an immediate effect and by defining the domain of security and liberty, but how?
A harmonious construction of liberty and security of the State could be drawn upon considering the golden triangle of Article 14, 19 and 21 of the Constitution of India. Completely banning the internet seems unnecessary, in the presence of other statues like Section 69 A of IT Act, which empowers the state to ban potentially harmful websites. Bringing Hugo Rosemount back, a fine distinction between national security and arbitrary action of the State could be drawn with the Apex Court’s intervention. Every order of the state which deprives any region within the country of the internet must be strictly scrutinized. This scrutiny should be in line with the mandate of Article 14 and a pressing need of time to make Right to Access Internet, a fundamental right.
 The code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1994.
 Anuradha Bhasin v Union of India, (2020) OnLine S.C 25 (India).
 Foundation of Media Professionals v UT of Jammu and Kashmir, (2020) OnLine S.C 453.