The Supreme Court's order in the Jammu & Kashmir 4G case: Judicial abdication?

On May 11, 2020, the Supreme Court dismissed a group of petitions praying for the restoration of 4G internet services in the Union Territory of Jammu & Kashmir. The Court issued directions for the formation of a “special committee” comprising state and national Executive functionaries to look into the “prevailing circumstances and immediately determine the necessity of continuation of restrictions”.

In this delegation to an Executive body, the Court not only falls short of its role as a guardian of constitutional rights, but also lays down a troubling precedent for litigants seeking a constitutional remedy against arbitrary actions of the Executive.

Dangers of Judicial Abdication

Ordinarily, in a writ petition under Article 32, when a Court finds that Executive action is arbitrary and inimical to exercise of fundamental rights, it quashes/dilutes the scope and operation of such orders/executive actions.

In Foundation for Media Professionals, however, upon applying the proportionality test discussed in Anuradha Bhasin, and finding that the issues raised by the petitioners “merit consideration” and that the “compelling circumstances” in the region cannot be overlooked, the Court passes the burden of such “consideration” to an Executive body of the same functionaries that had initially imposed the ban in the first place. This abdication of judicial responsibility has a two-fold effect.

One, by doing away with the judicial accountability upon Executive action that comes as result of the separation of powers, it emboldens the Executive to conduct itself in a manifestly arbitrary manner (often to achieve political goals). Where the Executive is empowered to both divest the citizen of his rights and decide on the legality of such divesting action with effectively no judicial accountability, whether a citizen will exercise any fundamental right or not becomes, in effect, a question of executive discretion, which is in complete contradiction to fundamental mores of a constitutional democracy.

Second, it creates a serious trust deficit among ordinary citizens/litigants in the role of the Court as a protector of their constitutional rights. The existence of a right without an effective remedy against its infringement is akin to having no right at all. By delegating, and thereby, diluting the right against a constitutional remedy, the Court has effectively endangered fundamental rights of citizens itself and any litigant in Jammu & Kashmir who finds that his/her fundamental rights have been infringed upon will hesitate to approach the Court in light of this order.

Even in its delegation, the Court has failed to ensure a semblance of accountability for the “Special Committee”. It has displayed unwarranted leniency to the non-formation of the Review Committee directed for in Bhasin under Rule 2(5) of the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. It has not sought to direct the committee to release a report by a specific deadline and has only called upon it to decide on the petitioner’s contentions “immediately”.

The Chief Secretary of Jammu & Kashmir. who directly supervises the Principal Secretary who released the restriction orders in the first place is a part of the three-member committee , a gross violation of the principles of natural justice.

Failure to consider post-pandemic realities

In Anuradha Bhasin, the Court did not explicitly declare that the right to access the internet was a fundamental right. However, it did hold that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of the internet, is constitutionally protected. Therefore, in light of that observation, it is disappointing to see the Court treat fundamental rights that are incidental to having access the internet at sufficient speeds in such a cavalier manner.

Post Anuradha Bhasin, the Home Department of the Government of Jammu & Kashmir had notified a list of white-listed websites that users could access through broadband, pre-paid and post paid services. However, a large number of websites that have been whitelisted cannot be accessed effectively without a 4G connection.

The internet is a pathway to information, and it enables the performance of and access to a variety of services and functions. It is used for conducting trade (e.g. online retail services), it enables education, and access to medical services. In a lockdown, the internet becomes even more integral because in the suspension of physical services, it may very well be the only way to access essential services.

This is something the Court fails to address in its order, which only mentions in passing that it may be “desirable” to have high speed internet. It does not substantially enagage with the exacerbating effects of a pandemic upon the internet restriction at all. The order does not test the proportionality of the restrictive measures in light of the pandemic, where the internet maybe the sole means of performing an activity that could be performed physically in a pre-COVID world.

For example, a primary school student who attended physical classes before the lockdown will require video-conferencing for classroom teaching to continue. But he/she cannot access it in the absence of 4G speed, amounting to an infringement of right to education under Article 21.

Such instances are true for numerous sectors, including healthcare. There is a wealth of educational information on the internet about the Coronavirus, but this information is bulky because it involves charts and graphs, and with 2G download speeds, is incredibly difficult to download.

This is especially concerning because the Coronavirus is a phenomenon that the medical community has not encountered previously. Information about it is therefore rapidly evolving and barriers to access can seriously hinder medical know-how and deter optimal treatment of Coronavirus patients in the territory. This amounts to an infringement of the individual’s fundamental right to access adequate medical aid under Article 21.

Impact on the underprivileged

As is typical of all maladies, the worst hit by the restriction are those on the lower end of the economic spectrum. There is no speed restriction on MAC-linked broadband (fixed line) connections, only on mobile prepaid and postpaid connections, broadband is more expensive than mobile internet, especially pre-paid mobile internet, therefore the large majority of lower-income households, small traders, etc. are unlikely to have broadband connections or the wherewithal to install them which leaves them reliant only on 2G while relatively more privileged (and fewer) individuals have access to faster internet.

Non-fulfilment of the proportionality test

The Apex Court accepts the State’s contention that these services could be misused by terrorists. While such reasoning might appear justified, the Court fails to engage with the petitioner’s detailed contentions that rely on empirical data from the Union of India’s “Limited Affidavit” dated September 30, 2019 in Bhasin to show that terrorist incidents have reduced with the gradual proliferation 3G/4G internet.

The presence of such empirical data (the credibility of which cannot be subject to doubt as it was relied upon by the government itself) necessarily implies that internet bans have little rational nexus with an increase in terrorist activities. Any ban or restrictive measure, that does not suitably further a legitimate goal is in non-compliance to the proportionality test and therefore, ought to have been held unconstituional without further delegation.

If the abrogation of Article 370 was intended to obtain the integration of Kashmir with the rest of India, the Supreme Court’s order in the 4G petition undermines this effort by placing the state at an informational, educational, medical and economical disadvantage.

It is imperative that the Judiciary upholds the principles of natural justice on all occasions to restrain the Executive from arbitrary exercise of power and render to the residents of Jammu & Kashmir the full protection of constitutional rights such that they are on an equal footing with rest of the nation.

The doctrine of separation of powers enables institutional accountability and strengthens the rule of law. Hence, the Courts must not merely give away their powers to "Special Committee(s)", but actively exercise oversight to ensure that natural justice, equity, and constitutional remedies are available to citizens at all times.

Nishin Shrikhande is an Associate at RKD Legal Services LLP, Mumbai and Sohini Banerjee is a 3rd Year student at NMIMS School of Law, Mumbai

Views are personal.