While the Citizenship Amendment Bill was passed in the Rajya Sabha, the impact on the secular thread of the country seemed to be showing. People in the North East have come out on the streets to protest the Citizenship Amendment Act. As usual, the State has decided to muzzle the voice of dissent; only this time in a more oppressive and disproportionate manner — imposing a complete ban on the internet in the region.
This extreme measure seems to be becoming the new normal; seen previously in Kashmir, although that, it could be argued, was the need of the hour. In this context, it is necessary to examine the context of the Act and how sacrosanct rights guaranteed under the Constitution are under attack.
The Citizenship Amendment Act seeks to amend, among other things, the criteria for illegal immigrants. This has become highly controversial due to not what it does but what it does not do. It provides that persons belonging to minority communities — ie Hindus, Sikhs, Buddhists, Jains, Parsis and Christians — from Afghanistan, Bangladesh and Pakistan shall not be deemed as illegal immigrants.
Although the move is certainly laudable, it excludes certain communities in certain parts of the regions — the Ahmadiyya community in Pakistan that is religiously persecuted, Rohingya Muslims of Myanmar and Sri Lankan Tamils. The Act deviates greatly from the Statement of Objects and Reasons that aims to protected religiously persecuted people of pre-Partition India.
Impact on the North East
To understand the implications of the Citizenship Amendment Act, it is necessary to examine it within the broader framework of the National Register of Citizens (NRC). Recently, the Assam NRC was completed, that saw approximately 19 lakh of the 3.29 crore applicants excluded from the final list. These 19 lakh people were deemed illegal immigrants. Of these, 13 lakh were Hindus. As a result of the Act, it is expected that around five lakh Bengali Hindus will be protected.
But the same protection will not be extended to Muslims and there appears to be clear discrimination on the face of it. This situation has led to unrest in the country's North East. And an internet ban is one of the ways to control such unrest and muzzle the voice of dissent.
Internet ban: Disproportionate, excessive and arbitrary
It is pertinent to note that freedom of expression in terms of the internet does not figure in the Constitution. This is because the internet arrived long after the drafting of the Constitution and could obviously not have been envisioned by the framers. The judiciary has done well to include this as an intrinsic right. In a recent monumental decision, the Kerala High Court had declared that the right to internet access forms a part of the right to privacy and is a Fundamental Right guaranteed under Article 21 of the Constitution. It also forms part of rights guaranteed under Article 19, pertaining to the right of citizens to expression and their right to knowledge.
The corresponding restriction to the said right under Article 19 is mentioned in Article 19(2) which provides 'public order' as grounds on which to impose reasonable restrictions on the exercise of said right. It must be noted that 'public order' is not the same as law and order. If the public at large is disturbed, that can be a public order issue. But all instances of breaches of peace cannot be a problem of public order. Further, apprehension of violence could be tackled in many other ways than bringing things to a halt.
In the present case, neither is the restriction imposed on the grounds of 'public order' nor on 'reasonable restriction'. Given that the right to internet access is guaranteed both under Articles 19 and 21, both conditions must be fulfilled before any such ban is imposed. It has been settled in the Maneka Gandhi versus Union of India, that the "procedure that deals with the modalities of regulating, restricting or even rejecting a Fundamental Right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert the right itself".
Thus understood, "procedure" must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only through a civilised process. It is pertinent to note that the claim is not that the State has no interest in maintaining the public order of the place. Indeed, the State has legitimate interests, but the restrictions must be narrowly tailored.
"Narrow tailoring" requires that State action should infringe on Fundamental Rights in as minimal a manner as possible in order to achieve its legitimate aim. Further, such a move would require 'probable cause' to provide a system where actions sought to be taken to remedy the situation must be proportionate and not excessive. However, a total ban on the internet clamps down on the right to expression in total, when the restriction could have been narrowly tailored. Therefore, the State action of a total ban on the internet fails to meet the standards of either Article 19 or Article 21.
'Safety valve' of democracy
It is the essence of democracy to let people develop their own opinion. In fact, the right to expression and dissent is one of the most cherished features across all democracies. Dissent helps democracies mature and sustain over a period of time. In fact, the history of progress of mankind is a history of informed dissent; a lot of creative activity of a high quality in all areas of human endeavour at any given time has been a reflection of such dissent. It's worth recalling a recent observation by Justice DY Chandrachud in this regard. "Dissent is the safety valve of democracy," he said.
Therefore, the government must not muzzle dissent and try to ensure peace and harmony without such extreme measures.
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Updated Date: Dec 13, 2019 11:37:50 IST