The Dangers Of Outsourcing Justice

On May 11, 2020, a Full Bench of the Supreme Court of India created constitutional history. Three writ petitions had been filed under Article 32 to quash executive orders that restricted the mobile internet speed to 2G, on the ground that they violated several rights and fundamental rights of the people of Jammu & Kashmir. The writ petitions sought restoration of 4G, which is available in the rest of the country.

Serious constitutional issues relating to Articles 14, 19, 21, proportionality and strict scrutiny arose for consideration. This critical judicial function was simply outsourced to a Special Review Committee constituted by the Supreme Court. The Committee was to consider the rival contentions of parties, and “advise” the Union Territory of Jammu & Kashmir on the basis of its earlier directions in Anuradha Bhasin. By tossing this important writ petition into the lap of the executive, this Bench has achieved the unique distinction of converting judicial review of executive action into executive review of executive action. The judgment is even more remarkable as it does not set any timeline to complete this executive review and “advise” the Government. Indeed, justice outsourced is justice denied.

The Anuradha Bhasin case

Between August 4 and August 5, 2019, mobile phone networks, internet services, landline connectivity were all discontinued in the valley. This was challenged in a batch of cases where the Supreme Court issued 16 directions including two that held that suspending internet services could only be temporary and such orders were subject to judicial review. The Anuradha Bhasin case teaches us that giving directions is meaningless unless it is accompanied by a consequential Mandamus.

From 4G to 2G

In Jammu & Kashmir, a series of executive orders from January 14, 2020, restricted the mobile internet speed to 2G. The petitioners had produced voluminous data to demonstrate that 2G was useless except for making phone calls and sending a few text messages. Without 4G, the population of Jammu & Kashmir is unable to access important websites that facilitate online courses, business activity, statutory compliances and so on. The State/Union denied this and made the astonishing claim that 2G speed is adequate to access websites and also make downloads. The State also took a contradictory stand by claiming that restricting the internet speed to 2G was necessary to disable terrorist groups from communicating with each other and to also prevent fake news and anti-national propaganda in social media. The two contentions cannot co-exist. If 2G is sufficient to access websites and e-learning applications, it is equally sufficient for all terrorist activities to be carried on. The several practical problems faced by students, businessmen, doctors, advocates and others were not considered by the Court.

The Supreme Court’s ruling effectively enables the executive to indefinitely deny high speed internet connectivity to the entire population of Jammu and Kashmir. The problem of terrorism has plagued Kashmir for more than three decades and it is unlikely to disappear even in the distant future.

National Security v. Individual Liberty

The conflict between individual liberty and national security is not new and nobody denies the paramount importance of national security. But it has always been the duty of a constitutional court to test whether the restrictions on fundamental rights are justified and, most importantly, proportionate and rational.

In Liversidge v Anderson 1942 AC 206, Lord Macmillan observed:

“The fact that the nation is at war is no justification for any relaxation of the vigilance of the courts in seeing that the law is duly observed, especially in a matter so fundamental as the liberty of the subject- rather the contrary.”

In this judgment, rendered during World War II, Lord Atkin gave his memorable dissent and expressed concern over his judicial colleagues being more executive minded than the executive. It was Lord Atkin, who also held in Eshugbayi Eleko v Officer, Government of Nigeria, AIR 1931 PC 248, that it was a tradition of British justice that “judges should not shrink from deciding such issues in the face of the executive”.

The need to restrain individual freedom in times of crisis or to counter terrorism has resulted in a number of landmark cases. After the attack on the World Trade Centre, the United Kingdom passed a stringent law that enabled the detention and deportation of non-UK citizens, if they “were suspected of being concerned in terrorism”. In A v. Secretary of State for the Home Department [2005] 2 AC 68 (the Belmarsh decision), the House of Lords struck down this legislation on various grounds including discrimination between aliens and citizens. It held that while national security was a matter of political judgement of the executive and Parliament, it was the duty of courts to adopt an “intensive review” of whether rights of individuals were impugned, and the courts were not precluded by any doctrine of deference from examining the proportionality of the measures taken to restrict each rights on the touchstone of strict scrutiny. It is impossible to imagine the House of Lords sending the dispute back to the Home Secretary for “advice”.

In Hamdan v Rumsfeld 548 US 557 (2006), the US Supreme Court struck down the Military Commission set up by the Bush Administration to try detainees at Guantanamo Bay as being violative of the Uniform Code of Military Justice and the four Geneva Conventions of 1949, to which the US was a signatory. The fact that Hamdan was the chauffeur of Osama Bin Laden and several detainees were members of the Al Qaeda did not deter the Supreme Court from upholding constitutional principles.

Bank Mellat, a large Iranian bank with 1800 branches, 20 million customers and a business of almost three billion pounds in the UK, was suspected to be funding entities that supported Iran’s nuclear and ballistic missiles programs. The UK Treasury issued a directive prohibiting any person from dealing with Bank Mellat, effectively shutting down its business activities in the UK. A judicial challenge failed in the High Court and the Court of Appeal. However, in a remarkable and bold judgment, the UK Supreme Court, in Bank Mellat v. Treasury (2013) UKSC 39, quashed this directive as it failed to meet the test of rationality, proportionality and also because it singled out Bank Mellat from other Iranian banks. Lord Sumption, for the majority, observed that the directive failed to strike a fair balance between rights of the individual bank and the interests of the community. The UK Supreme Court had the courage to set aside this directive despite serious allegations and suspicions of the bank’s involvement in Iran’s nuclear program.

Our Supreme Court has been equally emphatic in stressing the paramount requirement of the Constitution, that even during an emergency, the freedom of Indian citizen could not be taken away without the existence of justifying necessity. In State of Madhya Pradesh v Thakur Bharat Singh AIR 1967 SC 1170, Justice J.C. Shah pointed out that the essence of the rule of law was judicial review against arbitrary executive actions.

It is indeed sad that the present Bench did not even make a preliminary inquiry on rationality and proportionality. Does the existence of terrorism and the involvement of terrorist organizations justify an indefinite and complete denial of 4G internet access to the entire Union Territory? What were the materials to show, even prima facie, that denial of internet access had curbed terrorism, when the Solicitor-General referred to an increase in the frequency of terror attacks?

Sentinel on the qui vive

The role of the Supreme Court as a sentinel on the qui vive is to act as a dyke against unwarranted encroachment of our fundamental rights. The 4G decision has spread darkness over Jammu & Kashmir and made life indefinitely miserable for 1.3 crore people. The Review Committee, to be best of my knowledge, has not even met and, even if it does, is unlikely to retract from the harsh position the executive has taken. When the Solicitor General has vehemently justified the imposition of 2G, it is astonishing, if not shocking, for the Supreme Court to expect a Special Review Committee to grant any relief to Jammu & Kashmir. This judicial retreat and the increasing tendency to turn a Nelson’s eye on the ritual incantation of national security and terror to justify violations of fundamental rights is a cause for serious concern.

If benches of the Supreme Court choose to repeatedly put Article 32 in cold storage, it is a matter of time before Indians begin to lose faith in this institution. Let us not forget the chilling implication of what Dante said in Canto III of the Inferno -

The Author is a Senior Advocate practicing in Supreme Court of India.