Utkarsh Vats and Shivang Berry
Exactly a year has passed since the abrogation of Article 370 which had conferred a special status on Jammu & Kashmir (J&K). A day prior to this, restrictions on internet access were placed in J&K under the Temporary Suspension of Telecom Services Rules, 2017 (Suspension Rules), which, ironically, are meant to be temporary in nature. Accordingly, the question of Constitutionality of the suspension orders passed on 4th August 2019, came up before the Supreme Court in Anuradha Bhasin v. Union of India.1 Although the Court acknowledged that expressing opinions through the internet came under the ambit of Article 19(1)(a) and that the indefinite imposition of the internet blackout was not right and went against the principle of proportionality, it failed to adjudicate upon the constitutionality of orders passed under the Suspension Rules. Instead, the Court directed the review committee under Rule 2(5) of the Rules to conduct a periodic review of seven days in lieu of a sole review. It is pertinent to note how the deference to the executive on testing the constitutionality of the ‘executive’ orders was accommodated, considering the substantial temporal leeway of 5 months at the disposal of the executive before the case was finally heard by the Supreme Court. It could be argued that the decision by the Court was merely deferral, providing the government with mere compliance discretion before delving into the (un)constitutionality of order vide Suspension Rules.
Such deferral notion is negated by the Supreme Court’s order in FMP v. UT of Jammu and Kashmir and Anr.2 (FMP), in which the restriction on mobile internet speed was challenged amidst the COVID-19 Fiasco. Finding resonance with Anuradha Bhasin, the Court constituted a Special Committee to examine the hitherto notions of proportionality vis-à-vis perpetual restriction on 4G internet in J&K. In effect, people will have to rely upon the good faith and zealous reading of the judgement by the said committee composed to conduct a review.
Hence, it becomes imperative for us to examine (i) the case for proportionality of the measures and its interplay with (ii) abdication of constitutional duty by the Supreme Court.
Proportionality in action: Validity of Suspension Orders
From the very dawn of the Indian Constitution, the Supreme Court of India has been of the view that any measure brought about by the government to restrict fundamental rights should bear a proportional relationship with the right itself.3
Until very recently, this view of Indian judiciary has been restrictive in nature. In other words, the doctrine of proportionality used in India had not adopted the German model of the four-pronged analysis,4 which mandates a nuanced chronological scrutiny, in entirety. It was only recently in the Modern Dental College and Research Centre v State of Madhya Pradesh5 (MDCRC), the Court has begun applying proportionality in its four-part doctrinal test as a standard for reviewing rights-limitations in India.
In Anuradha Bhasin, the Court reiterated the idea of the proportionality test as illustrated in MCDRC, which is a revamped model of the existing one applied by German Federal Constitutional Court.
The aforesaid doctrine lays down a four-pronged test wherein, first, it has to be analysed as to whether the measure restricting the rights serves a legitimate goal, then it has to be analysed whether the measure is a suitable means of furthering this goal (the rational connection stage), next it has to be assessed whether there existed an equally effective but lesser restrictive alternative remedy (the necessity test) and at last, it should be analysed if such a measure had a disproportionate impact on the rightholder (balancing stage). It is also important to note that the doctrine of proportionality expounded by Justice Sikri in the MDCRC was premised on this doctrine.
Internet restrictions and the four-pronged test
When we look at the 4G internet ban predicament from the proportionality spectacle that the jurisprudence in these cases dictates, it is found that there are heavy constitutional discrepancies. The state’s directive to enforce an internet blackout fails at least 3 of the 4 parameters of the 4-pronged test.
Firstly, under the rational connection test, while the government said that the internet blackout was to ensure that terrorist activities and law and order problems can be prevented, as mentioned above, there is a stockpile of evidence to prove that this theory does not hold much weight. There appears to be no rational nexus in the state’s argument of a link between terrorism and high-speed internet access as there were several encounters between the armed forces and the militants even though the internet shutdown has been in place for almost a year now.
Secondly, the restrictions also violate the alternative remedy test. While the government pleaded that this was, in fact, the least restrictive measure, there are several things that it could have done which have been done by governments worldwide to ensure a less restrictive policy.7 For instance, the State capacity measure(s) such as building adequate intelligence machination can be less restrictive as compared to trammelling down the liberty of masses.
Thirdly and most importantly, the balance test to see if the impact on the right holders was disproportionate seems to have been wholly ignored. The impact has been disastrous8 – inter alia, loss of lives due to lack of connectivity in times of COVID -19 crisis, large scale losses in business enterprises and hindrance of education of the youth.
Judicial Avoidance: Ghosts of the ADM Jabalpur
It has been nearly 45 years since the gloomy spectre of ADM Jabalpur v. Shivkant Shukla9 loomed large on the spirit of the rule of law. The decision in ADM Jabalpur, widely accepted as ‘darkest moment’ in judicial history, is essentially criticised for establishing the culture of authority,10 for it manifested executive’s prerogative to suspend constitutional remedies in times of emergency. The Supreme Court justified the substantial leeway to the executive on the pretext of “salus populi est supreme lex” i.e. presumption of executive’s good faith. Necessarily, it is imperative for us to delve into Justice H.R. Khanna’s dissent reflecting the notion of “Culture of Justification”, which has found affirmation in various Supreme Court’s decisions.
The question is not whether there can be curtailment of personal liberty when there is a threat to the security of the State. I have no doubt that there can be such curtailment, even on an extensive scale, in the face of such threat. The question is whether the laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat.Khanna J.
He also noted that Article 226 (power of High Courts to issue writs) bestows the constitutional duty upon the High Courts to issue congruous writs lest we want to allow encroachment of Fundamental Rights by the executive.
This, barring suspension vide Article 32(4), obliges the Supreme Court to enforce Fundamental Rights, as was remarked by Justice Khanna. Such acclaimed dissent becomes relevant in light of the constitutional abdication by the Supreme Court in a slew of judgment(s)/order(s) passed vis-à-vis 4G Ban.
While the Constitutional Abdication in Anuradha Bhasin vis-à-vis proportionality of the suspension orders has been discussed heretofore, it brings us to the continuing act of such evasion in FMP v. Union of India (FMP). In FMP, the Apex Court was posed the question concerning internet speed restriction. It went on to opine that
It must be noted that the authorities have been taking steps towards easing of internet restrictions taking into account the prevailing circumstances. This can be seen from the fact that initially only whitelisted websites were allowed, before internet access to all websites was provided on broadband, and finally to postpaid and verified prepaid mobile users as well, although at 2G speeds.
It is to be noted that at the time of the ongoing pandemic, for the Court to justify such deference by holding that certain restorative measures such as access to ‘selective’ websites or 2G internet are already in place is highly uncalled for, inter alia, two reasons. (i) There is a thin line between accessibility and efficacy of internet in digital times.11 (ii) In these unprecedented times of COVID, better efficacy (4G) is desirable for better accessibility. For instance, the hospital(s) might require a foremost internet connection to co-ordinate and treat subjects accordingly. However, such considerations were not taken into account while deferring the constitutional responsibility to the executive in succession.
Coming back to the spirit of Article 32 in juxtaposition with Justice Khanna’s dissent, the perusal of the spirit of Article 32 becomes imperative. Article 32(1) of Indian Constitution states that “the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”
It can be inferred from the language how it imposes the duty upon the Supreme Court to enforce the rights under Part III. The duty under Article 32 is part of the basic structure,12 which means the remedial nature of Article 32 cannot be suspended, irrespective of how exceptional the Court’s decision might suggest the state of affairs to be. Corollary to this, a perusal of slew of decision(s) by the Supreme Court is evidence of how the Court has abdicated this duty by providing the executive with a leeway to test the constitutionality of such orders, including judicial ideals of proportionality. For the Supreme Court’s reluctance to enforce the rights under Part III puts the notion of transformative constitutionalism propounded in recent years on a backburner.
Accordingly, there has been a remarkable shift in Indian jurisprudence from the “culture of authority” to “culture of justification”.13
As Eienne Mureinek notes while describing the ‘culture of justification’,
“The Constitution must lead to a culture of justification –a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command.”15
In other words, culture of justification requires substantive justification for the state’s actions, requiring the notion of proportionality and rationality to play a pivotal role accordingly. This “culture of justification”, as Bhatia writes, is reflective of Justice Khanna’s dissent.16 It is the sovereign claims below the belt which the Apex Court fails to question while adjudicating the rights at stake, reflecting the dishonourable spirit of ADM Jabalpur and embracing the Culture of Authority.
The National Security-Rights conundrum of Supreme Court continues amidst the substantive rights oriented jurisprudence. The phrase “one step forward, two steps back” best describes the adjudication of the rights by the Supreme Court, in light of continuous constitutional evasion. The Supreme Court, in its judgments, expresses the inclination toward striking the balance between security and liberty but at the same time, fails to examine whether such balance has been struck through government’s orders or not. The Apex Court’s foregoing of its responsibility through the justification “compelling circumstances of terrorism” testifies “culture of authority” the Court purports in state of exception. Through its impressive ‘obiter’ but cursory ‘ratio’, the Supreme Court has forsaken the continuing plight of people in the thick of internet restrictions in Jammu and Kashmir.
Utkarsh Vats is a 2nd year Law Student at NLIU, Bhopal. He has a keen interest is Human rights and public policy. He takes great interest in legal aid activities. He likes to debate and indulge in discussions on public law issues and other matters of public importance, and is a United Nations Online volunteer who has made significant contributions to several social service initiatives. He can be reached at firstname.lastname@example.org
Shivang Berry is a 2nd year Law Student at NLIU, Bhopal. He has a keen interest in Constitutional and International Law. He is also a paralegal volunteer at Legal Aid Clinic, NLIU, Bhopal, which makes concerns vis-à-vis contemporary issues arising out of public law, intriguing for him. He seeks to inculcate the legal awareness among the masses with the aim of constitutionalism. He can reached at email@example.com
End-notes Anuradha Bhasin v. Union of India, (2020) 3 SCC 637  Foundation for Media Professionals v. Union of India, (2020) SCC OnLine SC 453  Chintaman Rao v State of MP, AIR 1951 SC 118  Yutaka ARAI-Takahashi, Proportionality – A German approach, 19 Amicus Curiae (July 1999)  Modern Dental College and Research Centre v State of Madhya Pradesh (2016) 7 SCC 353 https://www.medianama.com/2017/06/223-alternatives-to-internet-shutdowns/  Hannah Ellis-Petersen, ‘Many lives have been lost’: five-month internet blackout plunges Kashmir into crisis, The Guardian (International Edition), January 5, 2020
 ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC 521 Gautam Bhatia, From a Culture of Authority to a Culture of Justification: The Meaning of Overruling ADM Jabalpur, 17 January, 2018, available at https://www.livelaw.in/culture-authority-culture-justification-meaning-overruling-adm-jabalpur/?from-login=70205  Chintan Chandrachud, SC’s decision not to decide on validity of restrictions in Kashmir is not just deferral, it is abdication, 16 January, 2020, available at https://indianexpress.com/article/opinion/columns/abdication-not-deferral-jammu-kashmir-communication-lockdown-6218567/  Fertilizer Corporation Kamgar v. Union Of India AIR 1981 SC 344  Government of NCT of Delhi v Union of India (2018) 8 SCC 501  Kalpana Mehta v Union of India (2018) 7 SCC 1  Kai Moller, Justifying the Culture of Justification 19 (LSE Law, Society and Economy Working Papers, 2018)  Supra, note 10.
The opinions expressed in this article are those of the author(s). They do not purport to reflect the opinions or views of NLSIU, Lokniti or its members.