To prevent any miscarriage of justice, the exercise of judicious perceptivity remains one of the prime functions of the Chief Courts around the world. But conversely to this ethical legal fidelity, on May 11, the Indian Supreme Court (while committing a judicial subterfuge) reversed its approach–that was delivered in its January ruling vis-à-vis the internet closure In Jammu and Kashmir— did not allow for the restoration of services – nor did it engage with the arguments of the parties in its order. Apart from raising the challenge on the ground of right to freedom of speech and expression [Article 19(1)(a) of the Constitution], the petition filed by the Foundation for Media Professionals contended a violation of Articles 19(1)(g), 21 and 21A of the Indian Constitution. Addressing a legal gathering on February 10 in Delhi, Justice A.P. Shah, the former chairman of 20th Law Commission said: “There are instances where freedoms that we have taken for granted are on unsteady ground, and where we are being made to doubt whether the Supreme Court is actually able to protect our rights at all or not. It is disturbing and unfortunate that we should still be asking questions of this kind, but some recent judgments and orders prompt such reflection.”
As regards the Kashmiris’ fundamental right to internet access. instead of upholding the petitioners’ plea, the Court asked a special committee comprising of the Union Home Secretary and the Secretary of Department of Communications, Government of India and the Chief Secretary of the Union Territory (UT) of Jammu and Kashmir (J&K) to ”examine the prevailing circumstances in the UT and determine whether the restrictions on internet services should continue. Yet in January the Court had observed that it did not want to, ” delve into the political propriety” of instructing the government to act.” And also, in opening remarks to its January ruling. the Court observed: “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness… it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness,” from Charles Dickens’ “A Tale of Two Cities.” It stated that while “it goes without saying that the government is entitled to restrict the freedom of speech and expression … the question is one of extent rather than the existence of the power to restrict.” In this backdrop, many Kashmiris including the Media Foundation were expecting from the Chief court to embrace a liberal approach in the said case.
Senior Advocate Salman Khurshid, appearing for one of the petitioners, had argued that private schools are under government directions to provide education via video-conferencing. “We have an obligation under Right to education to provide education,” said Khurshid. The Foundation for Media Professionals, a not for profit comprising of journalists to uphold media freedom and promote quality journalism, filed the current petition. In its petition, the foundation had prayed for the restoration of 4G services in J&K with immediate effect. While passing its order, the Bench of Justices NV Ramana, Subhash Reddy and BR Gavai expressed a need to ensure the balance between national security as well as the human rights of people in the region. The Counsel for the petitioners argued that 4G restriction has led to problems being faced by doctors who cannot access information about COVID treatment which is extremely necessary. The Counsel further argued that students from J&K have to compete with students from across the country but could not do so, as “video conferencing was useless for them.”
Convincingly enough, the Supreme Court’s orders on Kashmir represents a missed opportunity for the Court to show its liberal mindset on fundamental rights and fulfill its role as the sentinel on the qui vive. Three sets of petitions– relating to Kashmir– were filed before the Court. The first was related to the communication shutdown and Section 144 orders that were imposed on 05.08.2019. The second set was to raise the habeas corpus petitions that were filed against the illegal arrests and detentions of individuals, including minors, under the draconian Public Safety Act. And the third set related to the constitutional challenge to the government’s decision to amend Article 370 of the Constitution and breaking up the State of Jammu & Kashmir into Union Territories.
By all means, in all three cases, the Indian Court failed to deliver a satisfactory ruling, even after six months. ‘In January, the Court had directed the government to publish all orders, present, and future, authorizing the suspension of the internet/landline services and prohibiting public gatherings. It had rejected the government’s argument that national security considerations precluded judicial review. Previously, the Court upheld constitutional protection to the freedom of speech in terms of any profession or carry on any trade, business, or occupation over the medium of the internet, though it did declare access to the internet a fundamental right. Most importantly, the Court had ruled that an indefinite suspension of internet services remained patently unconstitutional. But unfortunately, the current move is a blunt reflection of lack of an effective remedy accompanied by the trend of judicial evasion. This is manifested in Court’s handling of other cases dealing with Kashmir as vindicated in Dr Sameer Kaul’s petition– or a PIL before the Supreme Court– seeking restoration of internet facilities in hospitals and other medical establishments in Jammu and Kashmir, forcefully soliciting and arguing– how the internet shut down is causing a humanitarian crisis.
Understandably the enviable right to privacy, for instance, has been read as both, a part of the Right to Life (Article 21), because it is essential to the enjoyment of life, and also as under ‘Right to Freedom of Expression’ (Article 19). Yet conversely to this conviction, the Court verdict clearly shows a reversal to the restricted conception of Fundamental rights as argued in the AG Gopalan case vs. the Indian Government in order to safeguard their exercise, and also leaves to judicial discretion— issues ill-suited for adjudication during an Emergency.
Accordingly, the Court-sponsored approach reflects that under Modi’s India Court is moving towards a chauvinistic judicial discourse that is much alarming for India’s legal image both domestically and internationally as Aniket Aga and Chitrangada Choudhary (the two Indian journalists) note, “we seem to not care that in ‘integrating’ a people via an armed siege, in silencing their voices and dismissing their pain, we are also abrogating our own humanity.” In theory, India’s Supreme Court has numerously referred the concept of constitutional morality in its various judgements but in practice, it has failed to embrace the noble credo of constitutional morality. It appears that in the quest for judicialisation some judges of the Indian Chief Court seem to have embraced their words outside the courtrooms too-thereby reflecting a moral compass: that church-state separation in the context of the judiciary is totally blurring-crucially undermining its credibility and the strength of democracy.
The writer is an independent ‘IR’ researcher and international law analyst based in Pakistan