‘ACCESS TO JUSTICE’ IN LIGHT OF THE INTERNET SHUTDOWNS IN KASHMIR

The Anuradha Bhasin case [W.P. (C) No. 1031 of 2019] dealing with issue of internet restrictions in Kashmir also had one of the more significant rulings that came out of it, i.e. the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and 19 (1)(g), which was held in Para. 152 of the judgment. However, at the same time, the Supreme Court restricted itself not to deal with the issue of right to access the internet as a fundamental right. This act of restricting itself, coupled with the fact this Covid-19 situation has brought in, has resulted in significant deterioration of one’s right to education, right to move court and right to speedy trial, among others. These are one of the most fundamental and basic human rights already recognised under our Constitution, and thus any violation of these has (theoretically) severe consequences.

The problem transforms into a much bigger concern when one looks at the data which puts India at a much higher rate of allowing internet shutdown across the globe. According to Access Now data, India has the most shutdowns of any country by a huge distance - 134 in 2018 alone i.e. 67% of the world’s internet shutdowns were in India. By comparison, second-placed Pakistan only had 12 shutdowns that year. The loss of internet connectivity in today’s world can lead to total disruption of normal functioning of one’s life, not to mention significant financial loss to a State as was pointed out by The Indian Council for Research on International Economic Relations (ICRIER), which estimated internet shutdowns had cost the Indian economy $3.04 billion between 2012-2017.

In Kashmir, these internet shutdowns, being justified with the notion of “national security”, yet to be backed by any evidence whatsoever before the Supreme Court of India, and now by the executive committee, are allowed to exist because of continued in-action of the highest court in India and the newly found ‘sealed cover jurisprudence’. It is important to notice that while a law and order situation may be a valid ground in certain circumstances to impose restrictions, the same cannot instead be replaced by complete impasse over information, especially considering the circumstances where entire examination schedule for students, online classes through video conferencing, work from home directives of companies and virtual hearings in courts/ tribunals have become the norm.

These orders curbing internet for such prolonged periods have also come to be sustained due to what George Orwell termed as “doublethink”. Doublethink is an act of simultaneously holding two mutually contradictory beliefs to be true. The concept was brilliantly explained and used in an article dated 14.05.2019 by Asim Ali (which can be accessed here). As Asim, with his article beautifully demonstrates in the context of Kashmir, one can hail the ruling party for having successfully tackled terror over the last five/six years, while also believing that the security situation is so grave that it justified extinguishing the state of Kashmir, or in this case, curbing internet for “security reasons”.

The Apex court has been so liberal in granting adjournments on vague and flimsy grounds, and if at all some hearing did take place, nothing substantial came out of them. Thus, the matter had dragged on for months culminating in constitution of an executive committee, after months and months of matter being kept pending, only to be left at the mercy of the executive. The contempt petition against the original judgment is also facing similar delays and in all likelihood, will meet the same fate.

While these internet shutdowns have resulted in obvious disruption of any normalcy in the area, these internet shutdowns which have now been in force for more than an year, with 2G services restored only in January, 2020, have also resulted in affecting judicial proceedings as well. A division bench of the High Court had to adjourn a case “on account of poor connectivity” and “non-availability of proper video conferencing facility” on 28th April, 2020. The High Court, in a suo moto cognizance, had summoned Home Secretary as recently as in July, 2020, as it had apparently become impossible to conduct even "bare semblance of a hearing". It wouldn’t be unreasonable to assume that the situation in lower courts would be much worse if this is what the judges are facing at the High Court level, the highest court of law at the State/ Union Territory level.

The results are disastrous. While an individual’s right to education, for example, is in complete shambles, any right of the person to seek remedy against the same, is also non-existent due to these internet shutdowns. While the High Court has tried to deal with the situation by taking suo motu cognisance of the difficulties faced by the public during the Covid-19 lockdown, nothing fruitful has really happened yet. Now what it really means for the people that reside in Kashmir? While the lockdown due to Covid-19 forces them to not be able to approach the court for physical hearing, the curbing of internet services has robbed them, in all practical terms, of any real remedy as well. Could there be any worse situation where such basic and fundament right of access to justice is non-existent for weeks and months on, and courts are yet to take note of it? And many activists, lawyers, academicians, students and probably people from all wakes of life have openly spoken about it, but only to be left unheard. From being hailed and envisioned as a future global super-power to a country where people are unable to enjoy basic inalienable human rights and the remedies are non-existent, the transformation has been rather abrupt and unexpected. The (non) access to justice is becoming the new normal.

About the Author:

Altamish Ilyas Siddiki is an advocate practicing before the Supreme Court of India and Delhi High Court, Twitter handle - @AltamishSiddiki; LinkedIn Profile- @Altamish Siddiki