On January 10, the Supreme Court (SC) wrote a 130-page judgment laying down the principles that would be used to determine whether an Internet shutdown is permissible or not. It held boldly that the freedom of speech and the freedom of trade on the Internet are fundamental rights. It mandated that any restriction to such fundamental rights, even if in the interest of national security or law and order, would only be valid if there was no other less restrictive way of achieving that objective. But in an astonishing act of self-abnegation, it refused to apply its own principles to the shutdown in Kashmir, which was the set of facts that was brought before the court. Instead, it directed the government to review all its orders in accordance with these principles.
The overwhelming response to the judgment has been to praise its principles and criticise its refusal to apply them. This is grossly misleading. It is precisely in the lofty principles it enumerates that the judgment gets it wholly wrong.
The entire foundation for the judgment is that a complete prohibition on the Internet is permissible as long as it can be demonstrated that the measure is proportionate to the interest sought to be achieved, and there are no other means less intrusive on fundamental rights that could have been used. But this is a logical fallacy. If a complete prohibition on the Internet (say, on the ground of national security, as was the case in Jammu and Kashmir) is to satisfy these tests, it would have to be demonstrated that a significant majority of websites that are accessed on the Internet or messages that are sent over the Internet could be a threat to national security. This is a warrantless proposition.
If the judges were serious about the proportionality doctrine, on which they spent 36 pages of their judgment, they should have been equally serious about its natural corollary — that a complete shutdown of the Internet can never be proportionate without deeming the entire population to be a threat.
Instead, they make a second logical fallacy in saying that complete bans have been accepted previously as constitutional. While correct, there is a crucial difference that they miss — the shutdown of the Internet is not like the complete ban of a book which has previously been held valid. Instead it is like the banning of books. Whatever may be the reasons for banning of a book, there can be no constitutional reason for banning the medium of books entirely.
For governments which now have been directed to implement this judgment, and follow its directions before contemplating any Internet shutdowns in the future, the quandary is this: While the SC has laid down the principle of proportionality which is to be followed, it has however not applied the principle itself. Further, it has said (wrongly) that were the principle to be applied, the validity of complete Internet shutdowns in the future would have to be determined on a case-by-case basis. To make sense of this internally contradictory set of holdings, it is no surprise that governments will find the lowest common denominator — that every future suspension will be determined on a case-by-case basis.
Consequently, as the website Medianama reports, despite the judgment, there was a complete Internet shutdown in four districts of Telangana for fear of law and order breaches; similar reasons justified a temporary shutdown ordered by the Jabalpur district magistrate; and the Jammu and Kashmir government, while whitelisting 301 websites for access, prevented access to any social media application and restricted speeds to 2G only. While one can attribute these to governmental intransigence, it is much more the direct consequence of the court refusing to apply its own principles. A judicial order comes alive for litigants, particularly governments, when it pinches. It is trite that an order cannot pinch unless it is applied to the facts before it. It simply becomes a tale “full of sound and fury, signifying nothing.”
For the general public, such judgments do more than signify nothing — they actively erode confidence in the SC. It is one thing for the SC to decide in favour of the government — criticising courts on the basis of whom the judgment benefits is often a tempting but overly simplistic exercise. But it is entirely another when it does not decide a case at all. Such a situation is far more worrying because judges appear to be shying away from their job of doing justice itself as the Constitution mandates them to do, “without fear or favour”.
Arghya Sengupta is research director, Vidhi Centre for Legal Policy.The views expressed are personal
