The Supreme Court on Friday frowned on the Centre and the Jammu and Kashmir governments for claiming statutory immunity from revealing the reasons for the restrictions imposed in the region, quoting legal philosopher Lone L. Fuller to say “there can be no greater legal monstrosity than a secret statute”.

“A democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know. Moreover, (the) fundamental rights (themselves) connote a qualitative requirement wherein the State has to act in a responsible manner to uphold Part III (relating to fundamental rights) of the Constitution and not take away these rights in an implied fashion or in casual and cavalier manner,” the bench of Justices N.V. Ramana, R. Subhash Reddy and B.R. Gavai said in their judgment.

“Second, there is no dispute that democracy entails free flow of information. There is not only a normative expectation under the Constitution, but also a requirement under natural law, that no law should be passed in a clandestine manner.”

At the same time, the bench said, the government was free to impose certain restrictions for a limited period and highlighted the thousands of lives lost to violence in Kashmir.

“There is no doubt that Jammu and Kashmir has been a hotbed of terrorist insurgencies for many years. In this light, we may note the State’s submission that since 1990 to 2019 there have been 71,038 recorded incidents of terrorist violence, 14,038 civilians have died, 5,292 security personnel were martyred, 22,536 terrorists were killed.

“The geopolitical struggle cannot be played down or ignored. In line with the aforesaid requirement, we may note that even the broadest guarantee of free speech would not protect the entire gamut of speech. The question that begs to be answered is whether there exists a clear and present danger in restricting such expression.

“In the present case, while the State initially claimed privilege, it subsequently dropped the claim and produced certain sample orders, citing difficulty in producing all the orders before this court. In our opinion, this is not a valid ground to refuse production of orders before the court.”

Movements were severely curbed and phone and Internet services blocked in Jammu and Kashmir for months since August 5 without any clear reasons being stated. Prepaid mobile connections still remain blocked in the Valley while Internet services have been restored in a limited manner for a select few, such as journalists and hospitals.

Internet and economy

The court noted that the Internet was a key tool for commerce and the globalisation of the Indian economy. It said the rapid advances in information technology had opened up vast business avenues and transformed India into a global IT hub.

Therefore, it said, any unreasonable restrictions on Internet use would amount to a violation of the citizens’ fundamental right to free speech and to carry out their professions.

“There is no doubt that there are certain trades which are completely dependent on the Internet. Such a right of trade through (the) Internet also fosters consumerism and availability of choice,” the court said.

“Therefore, the freedom of trade and commerce through the medium of the Internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).”

Applying the doctrine of proportionality, the court said such restrictions should be “tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed.”

The Centre had argued for a blanket Internet ban, saying it was technically impossible to allow selective access to Internet services, but the court rejected the stand.

“If such a contention is accepted, then the government would have a free pass to put a complete Internet blockage every time. Such complete blocking/ prohibition perpetually cannot be accepted by this court,” the judgment said.

Terrorism rider

The bench, however, agreed that there was merit in the government’s contention that the Internet could be used to propagate terrorism, thereby challenging the sovereignty and integrity of India.

“This court would only observe that achievement of peace and tranquillity within the erstwhile state of Jammu and Kashmir requires a multifaceted approach without excessively burdening the freedom of speech. In this regard the government is required to consider various options under Article 19(2) of the Constitution, so that the brunt of exigencies is decimated in a manner which burdens freedom of speech in a minimalist manner,” it said.

“We think it necessary to reiterate that complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate, less intrusive remedy.”