The Web of Rights

BY THE TIME UNION HOME MINISTER AMIT SHAH ended his speech in Rajya Sabha on August 5th, 2019, internet services had been gone in Jammu and Kashmir (J&K) for a day. Ten days later, the Supreme Court listed the first petition to restore the communication service. In the months that elapsed, an institutional tug-of-war played out in the court and outside. In a polarised environment, arguments in favour of restoring internet and those against it acquired a political colour. The court adopted a different approach as it distanced itself from the heated debates. Instead of rushing into a judgment, the court took time to understand the issues involved in the case. But in an intensely partisan moment, even the court was not spared: a so-called ‘doctrine of judicial evasion’ was invented to show how the court was siding with the Government by not hearing the Kashmir cases speedily.

In the event, the Supreme Court adopted an incremental approach. It did not undo any of the actions of the Government in J&K but ordered a stringent regime for encroaching on fundamental rights. It held the right to speech and expression through internet to be protected by Articles 19(1)(a) and 19(1)(g) of the Constitution. These articles deal with fundamental freedoms available to citizens. The court also cleared the path to judicial review for decisions to snap the internet in future.

If the court was cautious, given the situation in Kashmir, its approach leaves plenty of questions unanswered. As developed by the Supreme Court since 1950 in cases where fundamental rights are restricted by the Government in extraordinary situations, the judiciary resorts to what are known are proportionality tests. These tests weigh the restrictions on fundamental rights against the goals sought by the Government. Imagine if a riot breaks out in some part of India and the district magistrate fears violence spinning out of control. Can he shut down the internet to prevent rioters from coordinating with each other on social media to spread violence? The court says, the magistrate must weigh his options. For example, are their alternatives to a complete shutdown of the internet? Can the magistrate block social media sites instead of totally blocking access to the internet?

The crux of the court’s argument is to be found in paragraph 70 of its judgment where it says that, ‘In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined. It ought to be noted that such goal must be legitimate.’ There is nothing out of line here as this is the standard approach in these matters. But after this, the court took a leap of faith when it added that, ‘…before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances.’ Finally, it added that these measures must be amenable to judicial review.

While these measures are perfectly normal for a routine law and order situation, they are hardly fit for an extraordinary situation of the kind in J&K after the abrogation of Article 370. If one unpacks what the court said, there are three parts to its analysis. One: determining the goal of restricting the right to freedom of speech. Two: existence of an alternative mechanism for attaining the goal. Third, the appropriateness of such a measure keeping in mind its impact on fundamental rights. The first step is unexceptionable and any magistrate will apply his mind to it before restricting the most vital constitutional rights. It is the second and third steps where the court erred.
Instead of asking these questions, the right ones revolve around decision-making in risky and uncertain situations. In a situation of risk, where violence is expected or where other unforeseen problems may emerge, it is possible to weigh options. One can, for example, assign rough probabilities to different events. An experienced law and order officer will know consequences of different steps. But in situations of uncertainty such assessments are not possible. Was J&K on August 5th, 2019 in such a situation?

For 70 years political forces that have opposed normalisation of J&K as another Indian state have rested their case on the state’s distinct identity. This was in no small measure due to the package of unusual rights granted by Article 370. Originally envisaged as a measure to impart confidence in the people of J&K and listed as a temporary measure in the Constitution, the article ended up creating a separatist constituency that had gained traction over time. Even ordinary residents of the state who bore no animus towards India thought in terms of some kind of ‘final settlement’ that would turn J&K into some kind of independent enclave within India. The more extreme opinion thought in terms of a possible merger with Pakistan one day. From a political measure, Article 370 ended up as a psychological device that created a strange mix of separatist fantasy, anger and uncertainty. In the last one decade alone, the state has witnessed extreme lawlessness in urban areas and terrorist violence in rural areas.

Unlike a regular law and order problem, magistrates in Kashmir had no basis to assess the effects of a ‘least restrictive approach’ based on proportionality tests. Here was a constitutional measure that fundamentally altered the relation of J&K within India by ending a measure that fuelled uncertainty. Handling the possible repercussions of that step could not be assessed in the normal fashion as is the course in the rest of India.

It will be wrong to blame the court for the approach it took. The problem is that, in India, legal thinking continues along classical lines. The effects of risk and uncertainty in judicial decision-making are yet to enter our courtrooms. Unlike the US, and even West Europe, where a marriage of law and economics has occurred, economic thinking is yet to touch the Indian legal system. As a result, it becomes hard for courts to appreciate rare and even one-off situations like the one seen in J&K. The danger in what the court has recommended in the internet case is that it seeks to tie the hands of the executive for the future. It begs more questions. Can one rule out ‘extreme situations’ where the rational calculus of applying proportionality tests will be meaningless? What if a Kashmir-like situation were to arise again elsewhere? If the Government were to strictly adhere to the recommendations of the court and conditions went out of hand? Or if the government chose to do what it thought fit, wouldn’t that lead to disobeying the court?

Perhaps what can be said is that the court tried its best to balance the interests of the Government and preserve fundamental rights as best it could. The question now is where does the court’s judgment leave vital rights like freedom of speech and expression?

The petitioners will claim these rights are now at the mercy of a parliamentary majority that has empowered the executive as never seen before in independent India. The reality is considerably more complex, at least in terms of the interplay between politics and the law. Are there historical parallels that can help us understand our current predicament?

In the 1970s, the conflict between the judiciary and the executive was framed in terms of the primacy of the rights in Part III of the Constitution over the Directive Principles listed in Part IV. In the age of socialism, it was natural for the then Government to wish away some fundamental rights, in particular the right to property. A part of the political volatility of that period was due to this conflict between the two organs. At the turn of 1980s, these controversies died a natural death as India moved to more free economy where state-led development gave way to the private sector taking up a greater responsibility for economic growth. That process is going on and there are hardly any cases that reach the Supreme Court which question the right of the Government to give shape to the Directive Principles.

The 21st-century conflicts are of a different kind. They are no longer between the individual and the state but between one individual and another. Now, the conflict is between the rights of Part III and the Fundamental Duties listed in Part IVA.

It is usual to consider any abridgment of Article 19(1)(a)—the right to freedom of speech and expression—in terms of the restrictions listed in part two of the same article. In light of events in Kashmir—even before the snapping of communication facilities in August 2019—it is interesting to contrast freedom of speech and expression against the duty ‘to uphold and protect the sovereignty, unity and integrity of India,’ listed in Article 51A(c). A comparison like this leads to howls of protest as soon as it is made. Liberal opinion in India dislikes the comparison as the duties are considered to be a cloaked device to diminish the rights. What adds to the odium is the fact that these duties were inserted in the Constitution at a time when democracy was suspended in India.

That is where the protest should end. For one, Parliament never removed these duties when democracy was restored in 1977. For another, since 1977, the march of rights has continued unabated to the total elision of duties. In a rare instance, Parliament thought it fit to balance fundamental rights and duties in 2002 when the 86th Amendment to the Constitution came into force. Murli Manohar Joshi, the then education minister, while piloting the amendment Bill, made a case for symmetric changes in Part III, Part IV and Part IVA while making the case for right to free and compulsory education for children between the ages of six to 14. The minister stressed the obligation of parents to provide opportunities for the education to their children. The gap of a quarter century between the entry of Article 51A and the 86th Amendment is a good indicator of Emergency’s long shadow. There is a good reason why it is unusual for politicians to highlight fundamental duties. Interestingly, the same reluctance disappears in the case of secularism, another Emergency-era addition to the Constitution.

Barely 10 days after the court delivered its verdict, there are indications that broadband services will be restored in Kashmir soon. It is hard to say if this is the result of the judgment or reflects a fresh appraisal of the ground situation in the Valley. The five-month period since August was not the first shutdown of internet services in the Valley and it is unlikely to be the last. But these months also saw the most ferocious attempts to end the shutdown. On the surface, these were couched in the language of public welfare but in reality the motives were political. The cast of characters and the breathlessness with which political challenges—mounting international opinion against India and the innumerable ‘fact-finding’ trips by activists to Kashmir—point in that direction. At no point did this set of persons devote even a thought to the danger of mass violence, loss of life and the threat to India’s integrity in case extraordinary precautions were wound up in the weeks and months after the abrogation of Article 370. Anyone who cares to look beyond headlines can see this as a tussle between the right to freedom of speech and expression and the fundamental duty to uphold and protect the sovereignty, unity and integrity of India. A better example of real-life constitutional conflict outside the cloisters of the Supreme Court is hard to find.

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