Kashmiri journalists protest against internet blockade put by India’s government in Srinagar. (Photo by Tauseef Mustafa/AFP)
Lately an order was issued by the Union Territory of Jammu and Kashmir to limit internet speed in the region to 2G. On 11 May 2020, In re Foundation for Media Practitioners, the Supreme Court of India disposed of a petition seeking to quash this order. The Court, while doing so, did not offer any recourse to the petitioners in response. Thus, effectively shying away from checking the constitutionality of the impugned order. The Court, however, in Anuradha Bhasin had upheld the right to speech and the right to carry on business over the internet as a fundamental right. Following this judgment, the govt. restored the internet services, but restricted it to 2G speed. It was this restriction which got challenged in the above case. Admittedly, it is a bit late to make a general analysis of the order, but, I specifically attempt to highlight one core issue: that of how the basic socio-economic rights of an individual have been made contingent and uncertain, therefore probabilistic in nature, by the indiscriminate effect of this order.
The question, therefore, arises: is the Executive’s power to “rule by decree” is unfettered and free from all restraints? For example, can the Executive, if it so desires, issue a decree, impacting indiscriminate effect on the life and dignity of the people? A similar question was raised with regard to Parliament’s amending power. In the case of Kesavananda Bharati v. State of Kerala, a thirteen-judge bench of the Indian Supreme Court, by a majority of 7:6, answered that question in the negative. Hidayatullah J., in Sajjan Singh opined that the many assurances given in Part III made it difficult to visualize fundamental rights as mere “playthings of a special majority.”
It is this view which tempts me to ponder upon whether such thing applies to the Executive’s power to issue decree as well or they are allowed to play dice?
The primary issue is about whether we can cognize and ascertain our guaranteed rights, or whether it is arbitrary and contingent. In ancient times, the word “discrimination” was looked up as a pretty random phenomenon. In modern democracies, nevertheless, the term “discrimination” or “violation of rights” is judged by its impact – direct or indirect – and not merely by its object or intent. Unlike before, gradually the people – who recognize themselves as a citizen with standard human rights, and not a subject of a police state – have started to resist against the authorities, who behave in a capricious and whimsical manner. It is now well established that an executive authority need to obey certain definite set of laws and rules, like the motion of the heavenly bodies across the sky. This leads to the idea of deterministic rights. In effect what it means, that if at one time, we knew about the position and standard of our rights, then we could predict their impact and position at any other time.
Or to sum up: certain “basic human rights”, ceases to be “basic” in nature, if it only holds when some transient executive authority, decides to let things run, and not intervene. This principle implies that the people can rest assured of their future “basic human rights”, in theory at least. In practice, however, there are various complex equations to alter this determinism, but it is now widely accepted that there needs to be some certainty – checked through four pronged proportionality test – insofar the basic human dignity and rights are concerned.
It was this premise at the heart of Shyam Divan’s submission, when in the Aadhaar case, he rose up before the constitution bench to say, “If I have certain rights, then how can my enjoyment of those rights be made probabilistic?”
The dimensional nature of the issue here is similar. The suspension of internet – now limited to 2G – has a discriminatory impact, if not object. For example, take online exams and education during the pandemic. It creates two classes of students in a same country who are legally entitled to their education and exams: those who have internet connections and those whose access to internet has been snatched away by the sanction of an executive action. Therefore, in effect, the future education of J&K’s resident rests upon the probability of when the executive deems fit to retain the internet in the valley. Thus the function of this deprivation is an executive’s action which is discriminatory in its impact and constantly been legitimized upon rather amorphous and overbroad concepts of “national security” and “greater good” without showing any rational nexus between the two. It is this framework that must be kept in mind while analyzing the legitimacy of any executive orders.
It remains an outlandish fact that a non-permanent executive has made the citizens as a subject of a police state – subverting their guaranteed dignity and rights contingent onto the executive’s whim. It also invariably shifts the burden of proof towards the legitimate citizens to prove their entitlement of the guaranteed rights which they have been deprived of.
Every executive actions concerning the security of a nation holds a special feature to be useful to the society. But it is the same action which historically have held the baton of suppression – the suppression of individual rights and dignity.
The author is a law student and legal writer at Narsee Monjee Institute of Management Studies School of Law, Mumbai. You can find him on Twitter.
An abridged version of this article was first published on The Leaflet.