Guest Contributor Bhaskar Kumar is a 3rd year student at National Law School of India University, Bangalore. His areas of interest include criminal justice, human rights, constitutionalism and international law. He writes for a number of platforms including law review blogs and media platforms like The Hindu, Live law JILS-NUJS etc.
In anticipation of unrest after altering the special constitutional status of the state of Jammu and Kashmir, the Indian government detained several political leaders and imposed a broad restriction on freedom of movement and press in August 2019.
These restrictions were imposed in the aftermath of abolishing article 370 of Indian Constitution. This article was part of the Constitution of India which provided special status to the state of Jammu and Kashmir. By virtue of this article, the people of Jammu and Kashmir used to enjoy some privileges including exclusive property rights.
The government justified this amendment by considering it a step that ensures the complete integration of the state into the Union of India and to have better control over the territory in order to curb terrorist activities allegedly taking place there.
By imposing section 144 of Criminal Procedure code (1973), the government banned public meetings and shut down the internet and phone services completely which consequently disrupted news and information services. With this step, the government of India has violated the right of freedom guaranteed under article 19 of Indian constitution which protects citizens’ right to freedom of movement, assemble peacefully without arms and press until and unless security of state, sovereignty or interests of the general public is at stake. When such concerns are at stake the government might impose reasonable restrictions over enjoyment of these rights.
In the present case, however, the measures taken by the government of India cannot be said to put reasonable restrictions on the enjoyment of these rights in light of numerous judgments delivered by the apex court. In Indian Express Newspapers v Union of India(1985) 1 SCC 641, the Supreme Court held that freedom of press is crucial to communicate facts and opinions which educate people about political establishments and hence, there cannot be any interference with that freedom in the name of public interest. In the present scenario, due to imposition of restrictions, newspapers are not able to operate or circulate their services. This amounts to an infringement of the right to freedom of expression.
While stressing the importance of the freedom of the press, the Apex court in Dinesh Trivedi v Union of India held that citizens have the right to know about government decisions and actions. But citizens can only know government’s decisions and restrictions when they have access to media sources. In Sakal papers pvt. ltd. v Union of India the Supreme Court observed that the right to freedom of speech entails the right to circulate one’s views to all whom one can reach and care to reach and courts must be vigilant of any kind of restriction over such circulation of views in order to preserve the democratic ethos.
Due to the imposition of a curfew in Kashmir and the presence of a large number of military personnel, it is impossible for a journalist to cover the news about the prevailing conditions due to imposition of section 144 CrPC. According to its managing editor, the Kashmir Times, a leading newspaper of state, has only been able to publish a minute version of its editions because of restrictions. The imposition of section 144 has made it almost impossible for journalists to carry on their duties.
In Babulal Parate v. State of Maharashtra the apex court ruled that section 144 of CrPC can only be imposed when there is an actual prominent threat endangering public order and tranquility which has not been ensured by government before imposing the curfew. The Internet has also been shut down and the circulation of information has been impossible because of this. The Government of India has ruthlessly interfered with the freedom of press and information. The mandate of article 19 doesn’t give the unbridled power to governments to impose restriction merely on the grounds of speculation and anticipation. The reasonable restrictions on fundamental rights cannot be of such disproportionate nature that they extinguish the right itself. The Indian government has failed to justify the nexus between potential terrorist threats and internet and media shut down for an unreasonably long period of time, as there is no indication of any kind of threat to public tranquility in the present case.
Looking at the situation from the perspective of international humanitarian law, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) ,which has been signed and ratified by India, requires that the government protect the right to freedom of expression and Information. According to a resolution passed in 2012, the UNHRC affirmed that right to information applied online as well. Article 19(2) of the ICCPR mandates that everyone “shall have right to freedom of expression and this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art or through any other media of his choice”. As per article 19(3) of ICCPR, the right to freedom of expression and information can only be restricted on the conditions that they are done so by law and are necessary for respecting the rights of others and to protect the national security or public order.
In the present case, the aspect of necessity has severely been overlooked. As discussed earlier, there was no substance to show that there was in fact a threat to national security and public order. The respect of modern communication channels–particularly the internet–is very important for a democratic country. As an interactive medium, the Internet opens up new possibilities for communication and is accordingly relevant for the theory of democracy. It ensures participation by forming audiences and opposing audiences and enhances the possibilities for political information, deliberation and participation. No other medium facilitates the communication between state and citizen to the extent that the internet does. Research on the importance of the internet for civil society groups shows that net-based communication is key for the organization of transnational protests and solidarity in particular. Even though some studies have pointed out that online content is relatively conventional and little use is being made of the interactive potential inherent to the technology, this form of communication remains. In Ahmed Yildirim v. Turkey the European Court of Human Rights held that the access to media platforms is an indispensable tool for exercising the right to freedom.
The recent steps taken by Indian government in Kashmir constitute serious violations of principles enshrined in the constitution of India and international covenants signed and ratified by India. However, the government has not responded to the questions raised by media and civil society in this regard. Last month a delegation from European Union visited Srinagar, (the capital of Jammu and Kashmir) to have a first-hand understanding of situation. The visit was diplomatically important as the government’s move was criticized internationally by lawmakers. However, the visit was unofficial and there was no intention on the part of delegates to submit the report to European Union.
The Indian government should not have unbridled power to curtail the fundamental rights of its citizens. Constraints imposed on media and the internet must therefore be removed as soon as possible and citizens should continue to enjoy their freedom of speech.