, , , ,

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

One of the curious features around the ongoing litigation in the Supreme Court concerning the communications lockdown and executive detentions has been the absence of written documentation filed by the government, in court. For example, we still do not have access to the legal order imposing the communications lockdown, and in the habeas corpus cases, the Supreme Court’s “innovative” remedy of telling the petitioners to travel to J&K to meet the people who are allegedly detained, has effectively exempted the government from responding on questions of legality (so far).

In the absence of the government’s responses, it is impossible to know what legal and constitutional justifications it is offering for what are undoubtedly serious rights violations. In a previous post, I explained why this is a huge problem in a country – and a Court – that continues to (claim to be) governed by the rule of law. This situation, however, changed for the first time on October 1, when the State of Jammu and Kashmir (not the Indian Government) brought on record its reply (a “Limited Affidavit”) in Anuradha Bhasin v Union of India – the first of the petitions filed to challenge the communications lockdown.

From a survey of the Limited Affidavit (a copy of which is on file with the author of this post), the State’s rationale begins to appear. In paragraph 3, it states that the modus operandi of terrorists has been to infiltrate J&K from across the border, and then instigate local militants, with the help of separatist groups. In paragraph 5, the Limited Affidavit goes on to note that the government’s actions on Article 370 would jeopardise the position of these militants, as well as the separatist elements. And because of the influence that these groups enjoyed, there was an “imminent threat of deterioration of law and order.” In paragraph 11, the Limited Affidavit observes that in view of the “apprehension of misuse of Data Services”, requests were made to service providers pertaining to “different zones/areas” based on the threat perception, and which were ultimately confirmed in accordance with the Telecom Suspension Rules of 2017. In paragraph 12, it deals with the imposition of curfew orders under S. 144 CrPC on the basis of an apprehension of the deterioration of law and order, passed by various District Magistrates. In paragraph 14, the Limited Affidavit insists that the restrictions are temporary, and will be lifted based on an assessment of the situation in “each area.” Finally (for our purposes), in paragraph 16, the Limited Affidavit states that “the need-based restrictions were/are reasonable, had nexus with the purpose (pre-empt inflammation of passions and rumour-mongering).

Now for the purposes of this post, I want to bracket the issue of curfews and S. 144 (including issues around functioning of schools, hospitals, and markets), and focus exclusively on the issue of the communications lock-down. As I had discussed in the previous post, a communications lock-down – that infringes Article 19(1)(a) of the Constitution (at the very least) – can only be justified if the State’s measures meet the threshold of “proportionality”. One of the elements of “proportionality” requires the State to impose the least restrictive measure that is consistent with its legitimate purpose or goal. To take the very specific example of a communications lock-down: given the existence of “white lists” and “black lists” – which allow the State to block or disable mobile numbers in a targeted fashion – is it proportionate to shut off the communications of the entire state, instead of targeting individuals known to be – or even suspected to be – involved in or encouraging terrorist activities?

The Limited Affidavit, however, makes no argument at all on the question of proportionality. It argues that there exists a reasonable nexus between the measure (communications lock-down) and the goal (pre-empt inflammation of passions and rumour-mongering, presumably with a view to maintaining the 19(2) goal of “public order); now while even this connection is open to question (see, for example, recent research on the topic arguing against the belief that communications lock-downs prevent rumour mongering), what is clear is that no argument is offered in the Limited Affidavit for why more targeted measures cannot work (or were even contemplated). Surely it is not the State’s case that every individual in J&K is a potential inflamer of passions and a rumour-mongerer? That argument would be entirely at odds with our entire legal system’s focus on individual responsibility, and our aversion to collective punishment, or attributing collective criminality to entire groups of people.

But if that is not the argument, then what is? The only answer is to be found in the Limited Affidavit’s mention of “zones” or “areas” of potential disturbance, and also that the assessment is being made on the basis of the situation that these “zones” are in. That argument, however, falls into exactly the same problem discussed above: it is no longer about determining that there exists reasonable cause to (preventively) deprive an individual from exercising her Article 19(1)(a) rights, but that within an “area” (and “area” here means an entire state), everyone will be presumptively apprehended to be “misusing Data Services.”

Note, here, that this is not the same as Section 144 prohibitory orders in the physical world, where the State cordons off certain areas and prohibits assemblies there, ostensibly for the purpose of preventing riots. The justification for those prohibitory orders (and even they must meet the standard of proportionality, and cannot be perpetually extended) is that once the crowd is in place, you actually can’t separate the rioters from those caught up in the riot – and so you prevent the crowd from forming in the first place. That argument doesn’t translate into the digital world, especially when you already have a Section 144 order in place preventing assemblies on the ground.

That being the case, what justifies a departure from targeted shut-downs of identified mobile numbers to an assessment of what an “area” is like? I suggest that our Constitution allows for only one situation in which that approach is permitted: a declaration or “Proclamation” of Emergency, where (certain) rights may be suspended en masse, without the need for the proportionality assessment that may require individualised targeting. In other words, our Constitution recognises that there may exist rare and exceptional situations, where the situation is such that the a proportionate restriction of fundamental rights is (temporarily) impossible, and for the period of that impossibility, the State is exempted from adhering to the constitutional standard.

But here’s the crucial point: an Emergency must be declared formally. Not only must citizens be put on notice that their rights are suspended, but the existence of an exceptional situation – because of its very character – must strictly adhere to the legal formalities that are required to bring it into force. There’s been a lot of talk lately about an “undeclared Emergency”, but the point to note is that in legal terms, an “undeclared Emergency” is an absurdity. Without the legal form, it does not exist; and if it does not exist, it cannot be assumed in Court.

Or, to put the point more simply: there are two legal regimes. The normal legal regime, which requires the Court to rigorously apply its constitutional standards to violations of rights; and the Emergency regime, in which (some of) those rights stand suspended. But the two regimes cannot (legally) bleed into one another; where there is no Emergency, the State cannot “implicitly” invoke its logic in Court – and equally, the Court cannot, in its orders, act as if there was an Emergency.

The Limited Affidavit in Anuradha Bhasin’s Case, however argues as if there was an Emergency; but what is more worrying is that the Court’s orders (until now) appear to accept that. The most glaring example of this is the September 16th Order, which I discussed in my last post: the Court’s Delphic proclamation that the State ought to ensure that “national security” must be “balanced” with personal liberties is the logic of Emergency: not only does it impose no obligation upon the State, but in avoiding any mention of proportionality, it allows the State to determine exclusively how to achieve that balance – and thus, effectively, suspends those rights as legal rights.

This is what I would like to call a “judicial Emergency”: there is no proclamation of Emergency, but the Court – on its own initiative – acts as if there exists an Emergency, and its orders reflect judicial standards that are uniquely applicable to the Emergency regime. And this, in my submission, is the most appropriate conceptual framework within which to analyse the Court’s conduct on the Kashmir petitions over the last two months – a framework that is now fortified by the State’s first formal statement to come on the court record.

Of course, if we extend the analysis beyond communications shut-downs – and to habeas corpus – we find something even more troubling: because there the Court is acting not merely as if it was a judicial Emergency, but as if it was a judicial Emergency in 1976. Remember that the 44th Amendment – after Indira Gandhi’s fall – ensured that even during an Emergency, Article 21 – and therefore, the writ of habeas corpus – cannot be suspended. The Supreme Court’s conduct on habeas corpus, therefore, takes us into a world in which not only is there a judicial Emergency, but also, a world in which the 44th Amendment … no longer exists.

That is a somewhat concerning world to live in.