On January 10th – as we discussed on this blog – the Supreme Court handed down its judgment on the internet shut-down in Kashmir (it bears repeating that this is the longest continuing internet shut-down in any democratic country). The Supreme Court’s judgment had two parts: a statement of the law and an application of the law to the facts of the case. On the first issue, the Supreme Court held that accessing information through the internet was a fundamental right, and the principle of proportionality applied to adjudicating the constitutional validity of internet shut-downs (which, inter alia, requires the government to adopt the ‘least restrictive’ method when it comes to restricting rights). On the second issue, the Court directed the “Review Committee” (a government body), constituted under the Telecom Suspension Rules of 2017, to review the situation on a weekly basis.
In response to the judgment of the Court, the Jammu & Kashmir government has passed three orders purporting to partially relax the internet shut-down. In this post, I will argue that a reading of the government’s orders reveals that (a) they are in breach of the legal principles laid down in the Supreme Court’s judgment, and deserve to be challenged; and (b) these orders reveal that the State’s own case before the Supreme Court was based on flawed premises – something that has important consequences for challenges to internet shut-downs, going forward.
At the outset, it is important to note that this is a critique of the government’s orders on their own terms; the larger points – that a five-month long internet shut-down is inherently disproportionate, must be lifted at the earliest, and that the Supreme Court’s judgment unfortunately did not grant relief to the Kashmiris – remains.
On 14th January – four days after the Supreme Court’s judgment – the J&K government passed an order stating that cross-border terrorist elements were using the internet to communicate and spread propaganda, which could cause large-scale violence. The government directed, inter alia, for provisions of broadband services to institutions providing essential services, 2G mobile connectivity in certain districts, and the installation of internet firewalls and a set of “white-listed websites” that could be accessed by internet users. Access to social media was specifically prohibited. Subsequently, on 18th January, second order was passed – this time in exercise of review powers under the Telecom Suspension Rules. This order stated that there was had been no adverse impact after the partial restoration, but reiterated that the internet could be used for incitement, “rumour mongering”, and by anti-national elements. It directed restoration of Voice and SMS facilities on pre-paid SIMS, and extended 2G internet to a few more districts. In addition, it provided a specific list of 153 “white-listed” websites, from Blue Dart to Zomato to Amazon Prime – which could be accessed.
In accordance with the Supreme Court’s judgment, this had to be reviewed on a weekly basis. This, consequently, led to the third order, passed yesterday, which reiterated the twin points of “no adverse impact” and “apprehension of misuse.” This order basically expanded the set of white-listed websites to 301 (adding news websites such as Scroll and The Wire), continued the prohibition on social media, and clarified that “white-listing” was a continuous process.
White-Listing and Proportionality
The three orders make it clear that the government – in conjunction with Internet Service Providers – has the technological capacity to allow selective access to the Internet (contrary to what the Government’s lawyers argued in court; see this analysis by the Internet Freedom Foundation). Independent of the overall constitutional arguments (indicated above), a very simple conclusion follows from this: that internet shut-downs are inherently disproportionate, because a less restrictive alternative exists at all times. If the government’s entire justification for internet shut-downs is that the internet is being used for “rumour mongering” and “incitement to violence”, it is clear that blocking access to all of the internet – a large swathe of which cannot possibly be used in that fashion – fails the ‘least restrictive alternative’ prong of the proportionality standard. In future, therefore, internet shut-downs should be immediately struck down by Courts without any ado: the government itself has given us evidence that they are disproportionate.
This is not, however, a defence of white-listing: in fact, the consequences of the government’s orders go further, as they demonstrate that there exist alternatives that are less restrictive even than white-listing. The government can – it is clear – block access to specific websites (the repeated references to social media show that this is so). This would be a method of ‘black-listing’ – where access to the internet is allowed except for specified websites.
The conceptual difference between white-listing and black-listing can be summed up in very simple terms. In white-listing, the default is no access to the internet, except what the government allows. In black-listing, the default is access to the internet, except what the government prohibits. The first is a case of ‘everything is prohibited, unless specifically allowed.’ The second is a case of ‘everything is allowed, unless specifically prohibited.’
This is where the Supreme Court’s other finding – that accessing information through the internet is a fundamental right – becomes crucial. Because if a constitutional democracy means anything, it means that the default situation is – and must be – the existence of a fundamental right, and it is the limitations that must be the exceptions. White-listing reverses that fundamental proposition – in the words of K.G. Kannabiran, it makes the restrictions “fundamental”, instead of the right. Black-listing, on the other hand, not only preserves the fundamental character of the right, but also – by providing a clear category of what is forbidden (instead of an amorphous “everything”), allows citizens to challenge that before a court (another fundamental aspect of the rule of law).
This also makes intuitive sense. For example, if an individual wants to read science fiction on Strange Horizons, why should there be a need to special permission from the government, in the absence of which, the website cannot be accessed? On the other hand, if the government has credible information that Strange Horizons is inciting people to violence, then it can block access to the website – and, if necessary, will be required to justify it in Court. White-listing, on the other hand, is impossible to effectively challenge, because it brings us right back into the domain of generic statements about the “internet” being used to incite violence and spread propaganda – the kinds of arguments that the government made in the Internet Shut-Down case.
White-listing, therefore, is no effective “restoration”, as it continues to leave the fundamental right to communicate over the internet entirely at the Government’s discretion: exactly the Emergency-style argument that the Government’s lawyers tried to push before the Supreme Court, and were roundly rebuffed.
As indicated at the beginning of the post, this is not an argument that justifies white-listing (or even blacklisting). The continuing ban on social media on vague and specious grounds of “rumour mongering” remains disproportionate (as pointed out many times, there is actually no evidence showing internet shut-downs combat “rumour-mongering”, and indeed, evidence points the other way). The constitutional case against internet restrictions remains, and will continue to be made – before courts, and elsewhere.
What this post shows, however, is that the J&K’s actions after the Supreme Court’s judgment are effectively subverting the Court’s findings, and also demonstrate severe internal inconsistencies between what the government claims and what it actually does. The Supreme Court made it clear that access to information through the internet was a fundamental right, and restrictions would have to meet the test of proportionality. White-listing reverses that principle, and effectively makes restricting internet access a fundamental right of the government, with the burden upon the people to establish why they should be allowed to access selected parts of the internet. This reversal of the citizen-State relationship is unconstitutional, and will hopefully be recognised as such.
(Disclaimer: The author was one of the lawyers representing the Petitioners in the internet shut-down challenge.)