Editor's Note: Restrictions on the movement of people in the Kashmir Valley were eased on Saturday, with landline services restored in some areas of the city, even as stringent security arrangements continued to be in place. Restrictions have been relaxed in 35 police station areas of Kashmir, while 17 telephone exchanges have been made functional out of the total 96 across the Valley.
"I read them, letters of lovers, the mad ones,
and mine to him from whom no answers came.
I light lamps, send my answers, Calls to Prayer
to deaf worlds across continents. And my lament
is cries countless, cries like dead letters sent
to this world whose end was near, always near.
My words go out in huge packages of rain,
go there, to addresses, across the oceans."
- Agha Shahid Ali
As Kashmir faces a communication blackout — a simultaneous interference with landlines, mobiles, internet and the post, a Supreme Court bench of Justice Ranjan Gogoi, Justice SA Bobde and Justice S Abdul Nazeer declined to interfere in a petition by the editor of Kashmir Times, Anuradha Bhasin. The bench decided to consider it at a later stage, along with petitions challenging the Presidential Orders and subsequent legislative and executive acts that seek to abrogate the special status of Kashmir under Article 370 of the Indian Constitution. Earlier this week, a petition by Tehseen Poonawalla challenging the communication blackout was similarly deferred, the Supreme Court orally observing that the ground reality was only known to the State and the matter may be deferred till "normalcy" is restored.
The view taken by the court entirely negates the protections of freedom of speech and expression — particularly in its failure to ensure that interim orders are speech-protecting unless the State makes a substantial prima facie case for restricting speech. The court failed to even question the legal basis of these restrictions and the reasons offered. The orders authorising these shutdowns are not available in the public domain, nor is there any access to the actual ground reality in Kashmir; far from the requirement of determining the proportionality of these restrictions.
As it exists, peacefulness in Kashmir is Schröndinger's cat until the restrictions are lifted —Kashmir currently is both reported as "peaceful" enough to legitimatise the Union's decisions and not peaceful enough to justify the lifting of restrictions. The State is being permitted to rely on its own excesses to deny the court or civil society the ability to test their reasonableness.
The traditional tests for freedom of speech would undoubtedly continue to apply to the internet and to the shutdowns here. The Supreme Court would have to determine whether the apprehensions regarding public order or State security under Article 19(2) of the Constitution are not conjectural but have a proximate and direct nexus with the speech sought to be curtailed. However, I posit that the traditional vocabulary of public order and proportionality are necessary but not adequate to acknowledge this free speech harm. There are two reasons for this: first, as stated by David Kaye, the internet shutdown here was accompanied by a shutdown of almost every other known means of communication; second, it has been done with a view to deny Kashmiris the right to participate in decisions that affect them.
Towards a Right to Communication
The right to communication may be considered an umbrella term for various related rights. It is deeply rooted in freedom of speech and expression and obligates the State to ensure access to means of communication. While not expressly recognised in international instruments or in the Indian Constitution, it is implicit in the right to receive and impart information-under Article 19 of the International Covenant on Civil and Political Rights (ICCPR) or Article 19(1)(a) of the Indian Constitution. The Constitution of Nepal, on the other hand, expressly recognises access to means of communication as an independently enforceable Fundamental Right.
The right to communication is implicit in the right against isolation, the right to life with human dignity and in socio-economic rights such as access to primary healthcare and allied emergency services, which are core, non-derogable rights under the International Covenant on Socio-Economic Rights. Previously, the Supreme Court has considered the means of communication themselves as a public resource, held in trust by the State; thus, people have the right to access them on the basis of principles of distributive justice.
The conception of reasonable restrictions may be inadequate to consider the right to communication. While the reasonableness and proportionality may be considered in context of freedom of expression and the right may be restricted, it is unlikely that it is sustainable in international human rights law to suspend the right to communication in entirety, certain aspects, such as the right to access healthcare, being non-derogable.
Right to Democratic Participation in Decision-Making
Article 25 of the ICCPR recognises the right of participation in public affairs, either directly or through freely chosen elected representatives. The right to democratic participation is intrinsically linked with freedom of opinion and expression — the formation of public opinion requires a free press and a free exchange of ideas between elected representatives and citizens. Democratic debate is, thus, both the objective of free speech and a necessary condition for the continued existence of the right.
A recent decision of the Supreme Court in Indibily Creative Pvt Ltd. versus State of West Bengal recognised these objectives and held that "the ability to communicate 'ideas' is a legitimate area of human endeavor and is not controlled by the acceptability of the views to those to whom they are addressed."
The State, therefore, not only had to refrain from restricting this right (the negative aspect of the right, traditionally tested for the legitimate aims of public order/State security and proportionality), it also had to ensure that it maintains conditions where these freedoms flourish (positive obligations, not subject to the tests of reasonableness under international human rights law). The Supreme Court in that case considered the use of police powers to deny democratic debate as an extraconstitutional exercise of power which entitled the petitioner to compensation.
Similarly, the communication blackout in Kashmir is particularly unconscionable — the anticipated dangers of public order are linked to the State's failure to ensure democratic participation of the affected persons. The procedural infirmities of the decision, the complete failure to consult Kashmiri residents, and the suspension of the elected government form necessary context to this analysis. The tests of public order are relevant in a case where shutdowns are in response to say hate speech by a citizen, where the the State is anticipating reaction to speech by a private party which is not constitutionally protected and using the internet shutdown as an immediate measure, the proportionality of which must be tested. In this case, however, the anticipated danger the State is seeking to insulate itself from is the unpopularity of its decision, and a State's desire to immunity from dissent can never be a legitimate aim of restrictions.
Unfortunately, these decisions are frequently being justified as a bitter pill — a necessity for the "people's own good" in the long-term. This is best countered by the opinion of Justice Martens in a decision of the European Court of Human Rights — that "respect for human dignity and human freedom implies that the State is bound to accept that in principle everybody is capable of determining his fate in the way that he deems best" and the coercive power of the State cannot be used in the name of protection.
This ability to decide on behalf of one not consulted is inconsistent with all principles of human rights. Thus, to truly commit to human rights and democratic principles, the Indian Government and courts must first shed its paternalism. Until then, mad heart, be brave!
The author is a Delhi-based advocate
Updated Date: Aug 18, 2019 10:43:45 IST