The acceptance of these arguments would have taken us down a dark path indeed. And it was therefore fortunate that in the judgment, both the arguments made by the state’s lawyers were roundly rejected.
The Supreme Court judgment on the communications lockdown in Kashmir will be remembered for many things. It will be remembered for being delivered during the longest internet shutdown in any democratic country. It will be remembered for the first apex judicial verdict on the constitutionality of internet shutdowns in a country that occupies the top global spot on the issue, and has more internet shutdowns than the next nine countries combined. It will be remembered, with some disappointment, for laying down a set of detailed constitutional principles, but refraining from applying them to the case before it, and thus, effectively, enabling the shutdown to continue, at least for the foreseeable future.
But more than any of that, the case deserves to be remembered for the kinds of arguments the government, and its lawyers, made before the Supreme Court. From August 5, the day of the communications lockdown and the imposition of Section 144 of the CrPC in Jammu and Kashmir to the present day, the government has not even made public the orders that constitute the legal bases of the lockdown. In other words, the government took away the fundamental rights of seven million people without even the courtesy of informing them why it was doing so or enabling them to challenge its decision in court. And before the Court, the government then argued that it did not need to do so because the very fact of publishing the orders would jeopardise “national security”. In short, the government argued for a regime of secret laws and secret orders, answerable to only the imperative of national security.
The government’s second argument was even more insidious and dangerous. Citing cross-border terrorism in Kashmir, it effectively argued that it was accountable to no one as long as it invoked the two magic words — “national security”. Why had the internet shutdown been imposed upon an entire people? Do internet shutdowns actually help in containing rumour mongering and stopping violence? Research shows they do not. If the issue was the use of the internet to “radicalise” people, could there not have been more targeted and narrower ways to accomplish the goal, such as a selective blocking of websites? Could the government not achieve through its surveillance and intelligence network what it was trying to achieve by cutting off the rights of seven million people? Were the damages of the internet shutdown — damages marked by extraordinary financial loss, loss of effective expression, and granting a shield for state impunity — justified? According to the state none of these questions could be even asked, let alone answered, because all this was in the domain of “national security”.
“National security” thus became a shibboleth that the government, and its lawyers, used for denying to show the legal basis of its actions, and then to deny justifying them at all. Perhaps not since Attorney General Niren De stood up in 1976 and argued that the Emergency allowed the police to shoot anyone on sight, had such a claim for naked, untrammeled executive supremacy been advanced before the Supreme Court. And in 1976, at least, there existed the formal declaration of an Emergency, and the formal suspension of fundamental rights. Here, the state wanted to universalise the state of Emergency: Any invocation of the words “national security” would be treated as conclusive proof of the existence of an Emergency, and a justification for granting the state near-total impunity.
The acceptance of these arguments would have taken us down a dark path indeed. And it was therefore fortunate that in the judgment, both the arguments made by the state’s lawyers were roundly rejected. On the first count, the Court held that the basic principles of legality and the rule of law required that the shutdown orders be published and made available to the people so that they could know the reason why their rights were being restricted, and to challenge them if they so desired. If the government wanted to withhold or redact the orders, or any part of them, it would have to show in each individual case why that was necessary.
The Court’s second holding was even more important. It noted that at all times when the state sought to restrict individual rights, the principle of proportionality would apply. Proportionality is crucial, because it does not content itself merely by asking whether the state is pursuing a valid goal in its crackdown upon rights. Proportionality also queries the means by which the state has done so. And if the means are excessive, disproportionate, irrational, or otherwise unconstitutional, state action is struck down. For example, one of the important limbs of the proportionality test is whether the state has selected the “least restrictive” or “least intrusive” method in order to achieve its goal. This limb is based upon the idea that even when it wants to go after terrorists or maintain law and order, a democratic state must at all times respect individual rights to the maximum possible degree because the means matter as much as the goal, and the rights of the individual are not so fragile that they are simply effaced in the larger “national interest”.
The proportionality test, thus, would necessarily require the state to come to the Court and explain itself. The state would have to justify why it had taken the steps it had, whether it had considered taking less restrictive steps, and, why less restrictive steps wouldn’t work. And this is exactly how it should be.
The Supreme Court’s judgment, thus, is an important one, even though it failed to grant relief to the people whose rights were before it — the Kashmiris — who have now been deprived of the internet for more than five months. It is important because the strong invocation of the principle of proportionality can be used as a platform for challenging internet bans across the country; but also because the government’s attempt to gain judicial sanction of Emergency-style powers was roundly rejected, for now.
This article first appeared in the print edition on January 24, 2020 under the title "The shadow of Emergency." Bhatia is one of the lawyers appearing in the communications lockdown case.