Verdict on J&K internet restoration plea is not only a setback to fundamental rights, also violates the democratic principle of maintaining checks and balance

The Supreme Court refraining from passing any orders on the restoration of 4G internet services in Jammu and Kashmir and instead putting the ball back in the Central government’s court to examine the matter is a clear abdication of judicial responsibility. Four months after the court laid down that access to internet was a fundamental right and its denial for prolonged periods unconstitutional, on Monday, it chose to direct the Centre to constitute a ‘special committee’ to review the contentions raised in a petition seeking restoration of high-speed internet.The special committee will be headed by the Union home secretary, with secretary of the Ministry of Communications & IT and the chief secretary of J&K as its members.

The State was the main respondent in the case, making it not just ironic that the respondent is being asked to review its own actions and also the opposition to those actions. Indian constitution clearly defines the roles of the Executive and the Judiciary. However, this court directive negates the constitutional obligation of the court to review the working of the executive as the court has willingly given back that function to the government. To allow the State to sit as a judge and jury on its own functioning is to dilute the basic principles of constitutional democracy which remain in balance with the system of checks and balances ensured by all its branches – Executive, Legislature and Judiciary.

Ironically the direction has come at a time when Kashmir has yet again been robbed of internet connectivity for six consecutive days. On Wednesday,last week, after the killing of top militant commander in a gunfight, the government banned voice calls on mobile phones and the existing 2G internet. On Saturday, while voice calls were restored in Kashmir, barring Pulwama district, internet has not been restored.

The court order is also a dilution of its own judgement on January 10 this year against the absolute communication blockade.The court then had upheld access to internet as fundamental right and had observed that the government cannot impose restrictions for prolonged periods. Besides, it had held that valid reasons would have to be brought in the public domain for temporarily taking away these rights.It had also asked J&K government to set up a ‘review committee’ to ensure a reversal of the imposed restrictions. However, in the present case the court has relied heavily on the contentions of the State that internet freedom was a threat to national security and thus decided on grounds that the issues involved affect the State, the nation, and thus only the Centre was competent enough to assess the matter. In doing so, the court has not relied on facts, nor asked the government to give empirical evidence of any nexus between 4G and terrorismor data on whether the graph of terrorism has been higher when the internet facilities are available.

It has not taken into account the data and statistics on the incidence of terrorist violence and its ratio in comparison to the population that has been impacted by the ban on internet and other communication services, partial or full. The court has also not taken into account the basic principle of proportionality in jurisprudence. But above and all, the court has virtually deemed the Executive to be above the board. The purpose of an independent judiciary is to keep a check on the abuse of powers of the Executive. If petitions in the court have made the contention that the latter have resorted to abuse of power and curtailed the rights of public, it is for the courts to decide on the merits of the case, not send the case back to the Executive to decide on it. This is a verdict that would damage democracy.