‘Can’t Shut Everything Under Garb Of National Security’: Hegde

Commenting on the Supreme Court’s judgment on a bunch of petitions that challenged the legality of the five-month internet shutdown in Jammu and Kashmir, Senior Supreme Court advocate Sanjay Hegde told The Quint that judgment as “a balanced exercise in proportionality.”

The Supreme Court, on Friday, 10 January, observed that the access to internet cannot be suspended indefinitely. Kashmir has been without internet for 158 days.

Since the abrogation of Article 370 on 5 August and the reorganisation of the erstwhile state into Union Territories, the Valley has witnessed the longest recorded shutdown in a democracy.

A three-judge bench held that freedom of speech and expression under Article 19(1)(a) of the Constitution includes the right to internet. Any restrictions on access to internet have to follow the principle of proportionality under Article 19(2) of the Constitution.

The apex court had heard a clutch of petitions from Anuradha Bhasin, Executive Editor of Kashmir Times, Congress Rajya Sabha MP Ghulam Nabi Azad and other interveners. It had concluded its hearings on 27 November and reserved its judgment.

“It basically tells the government that under the garb of national security you cannot shut down everything. The restrictions, if any, should be minimal and proportional. They should be justifiable by objective standards,” Hegde told The Quint.

Describing the judgment as “a great step forward,” Hegde added that he anticipates that “the Kashmiris will be using this judgment for their future claims. And why just Kashmir, all of India. Freedom is indivisible.”

“The orders of the review committee which has to complete its task in seven days will have to be placed in the public domain and which can be challenged either before the high court or the supreme court,” he further added.

Routine Shutdowns Can Now Be Challenged: Hegde

The apex court, however, did not strike down any of the restrictions in Jammu and Kashmir, including the five-month internet shutdown. The bench, however, laid down the law on how such restrictions in the state are to be assessed and challenged.

“Specially the passages with regards to the freedom of the internet will be very significant. Routine internet shutdowns will now become subject to challenge and judicial review. The same principal will also apply to section 144 proceedings.”

“While this judgment may not have delivered immediate relief, it has laid the foundation for future battles. It has prescribed the standards of review, both, for the government as well as for judicial review thereafter.”

Sanjay Hegde, Senior Supreme Court Advocate

Not only this governments but governments all over tend to use this power with a very broad brush. That broad brush approach will now cease and will come under more and more judicial scrutiny.