SC’s decision not to decide on validity of restrictions in Kashmir is not just deferral, it is abdication

Chintan Chandrachud
J-K Police seize mortar shells under bridge on Jammu-Pathankot highway

After expounding upon the relevant principles in this way, the Court abandoned its tasks of deciding whether the suspension orders and Section 144 orders were valid or invalid, and what consequences would follow. (File)

On January 10, the Supreme Court delivered a judgment in a case challenging what is now widely known as the “communications lockdown” in Jammu and Kashmir. On August 4, 2019, mobile phone networks, internet connectivity and landlines were disabled in large parts of the state, in anticipation of the monumental constitutional changes that would follow. This was coupled with restrictions on physical movement in several areas with political leaders of the region also being placed under house arrest.

The lockdown comprised two legal components: The first being orders under the temporary suspension of telecom services rules (suspension rules), which enables the central or state government to suspend telecom services when there is a public emergency or a risk to public safety. The suspension rules establish a modest review mechanism, requiring a three-member committee of bureaucrats to meet once, within five days, to determine whether a suspension order is appropriate. The second component included orders made under Section 144 of the Criminal Procedure Code, which enables magistrates to restrict physical movement in an area in the interest of public safety.

In deciding this case, the Supreme Court would have been expected to undertake three tasks. The first was to expound upon the relevant rules and principles. In this case, the constitutional and statutory provisions — the suspension rules and Section 144. The Court’s second task was to determine, based on its conclusions, whether the orders made under the suspension rules and Section 144 were valid or invalid. The Court’s final task was to determine what to do if any of the orders were invalid — this would typically entail the Court setting aside the orders, resulting in them ceasing to have legal effect.

The Supreme Court performed its first task in a robust way, arriving at a series of significant findings. The Court held that the right to freedom of speech and freedom of trade through the medium of internet were constitutionally protected, implying that only constitutionally authorised limitations on those rights were acceptable. Any orders made under the suspension rules would need to be published, even though the rules did not require publication. A single round of review of suspension orders by the review committee would not suffice. Rather, a periodic review would need to be undertaken every seven working days to assess whether the suspension order remained appropriate or not. The Court also held that Section 144 orders should be published and be accompanied with reasons, enabling citizens to meaningfully challenge them in the courts.

However, after expounding upon the relevant principles in this way, the Court abandoned its tasks of deciding whether the suspension orders and Section 144 orders were valid or invalid, and what consequences would follow. The 130-page judgment yields no decision on the most important issue before the Court — whether various components of the communications lockdown were invalid and should be set aside.

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Why did the Court decide not to decide? Two reasons can be inferred from its judgment. First, the status of the communications lockdown, and the orders in place that put it into effect, evolved during the course of the proceedings. The Court was not apprised about precisely which orders were in place, for what period and when. While the Court lamented the government’s failure to produce these orders, it did not take the logical next step of directing the government to produce them.

Second, the Court envisaged that the government should have the first opportunity of testing the constitutionality of the lockdown following its decision. For example, a review committee would need to convene within seven working days to determine which suspension orders should remain intact and which of them should be withdrawn, based on the principles in the Court’s judgment.

At first glance, this approach seems perfectly sensible. All governments need to be put to the test of thinking carefully about the constitutionality of their own orders before the Court does so. The trouble in this case is that inertia is highly prejudicial — it has taken the Court five months to hear and decide on the challenge to the communications lockdown. If the government now fails to comply with the principles set out in the Court’s judgment, will it take another five months for the issue to be decided? By that stage, the damage would already have been done, and it would be impossible to turn the clock back to award 10 months of freedom to the millions affected.

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It is also puzzling that the Court chose to dismiss the petitions rather than keep them pending to monitor the government’s compliance with its directions. The Court has deployed the strategy of keeping petitions pending in dozens of other cases that pale in significance compared to this one — from the running of the cricket board to red beacon lights on cars. The inevitable conclusion is that the Court’s decision not to decide on the validity of the orders giving effect to the lockdown is not just deferral — it is abdication.

This article first appeared in the print edition on January 16, 2020 under the title 'Abdication, not deferral'. Chandrachud is the author of The Cases that India Forgot. Views are personal.