5th August 2019, and a year thereafter

 5^th August 2020 shall mark exactly one year since the Modi Government made far-reaching changes to the constitutional structure of Jammu & Kashmir (J & K) and Ladakh – by amending Article 370, abrogating Article 35A, and converting the State into 2 Union Territories.

Before recalling the changes introduced in the Rajya Sabha on 5^th August, let us go back a bit further.

The month that preceded 5^th August 2019

Throughout the month of July, there was speculation in the Kashmir Valley that some major changes were being contemplated by the Central Government. A large number of armed troops were brought in, the annual Amarnath Yatra was cancelled, and tourists were asked to leave. President’s Rule had also been in force for more than 6 months. Meanwhile, Satya Pal Malik, the Governor of J &K, tried to assuage fears by stating that there was no need to worry about any change to Article 370 or 35A.

On 4^th August, speculation and anticipation reached such a stage that all political parties in J & K (except the BJP) decided to hold a meeting at Farooq Abdullah’s residence in Gupkar Road, Srinagar. The political parties jointly issued the Gupkar Declaration, which stated that they would be united in their effort to protect J & K’s identity and autonomy. The Declaration also stated that they would not accept any unilateral changes to Article 370 and 35A, or a bifurcation of the State. On the same evening, the J & K Administration disabled access to broadband, landline and internet communication services.

The morning of 5^th August: The Rajya Sabha meets with a surprise

On the morning of Monday, 5^th August 2019, the fears of all political leaders came true, and the Governor was forced to eat his words. Home Minister Amit Shah proposed a slew of constitutional changes in the Rajya Sabha.

In fact, legislative changes began just before Parliament Assembled, as the Central Government got the President to sign an Executive Order that was issued under Article 370. This executive order effectively amended clause (3) of Article 370. Instead of the Constituent Assembly of J & K, the Legislative Assembly would now have the power to make a ‘recommendation’ to amend or abrogate Article 370.

However, as J & K was under President’s Rule, it did not have a Legislative Assembly after the split of the BJP-PDP alliance. After the Executive Order was issued, Home Minister Amit Shah moved a statutory resolution in Parliament, contending that as the Legislative Assembly was suspended, the power to amend Article 370 shall now vest with Parliament. What was left unanswered was whether Parliament could perform the task of a Legislative Assembly, which is also supreme within its own sphere.

The statutory resolution effectively achieved 3 objectives – (i) it amended Article 370 to the effect that all provisions of the Indian Constitution shall apply to J & K without any exception or modification; (ii) it abrogated Article 35A, which was an enabling provision that permitted conferment of special rights and privileges to the permanent residents of the State of J & K; (iii) it repealed the Jammu & Kashmir Constitution, which had been enacted and adopted in 1956 by an elected Constituent Assembly of J & K.

If this was not enough, Home Minister Amit Shah also moved the Jammu & Kashmir Reorganization Bill, which converted the erstwhile State of J & K to two separate Union Territories of J & K and Ladakh. This was the first time in our constitutional history that a State had been converted to a Union Territory. As President’s Rule had been imposed, the changes were made without complying with the mandate of Article 3 of the Constitution, which requires the Legislative Assembly of a State to ‘express its views’ – when there is a proposal to reorganize or bifurcate a State.

As Rajya Sabha MP Derek O’Brien points out, MP’s were not even given a copy of the statutory resolution and the Reorganization Bill in advance, as this was added to the House’s List of Business in the last minute. The resolution and the Reorganization Bill was passed by the Rajya Sabha on 5^th August itself, despite the fact that MP’s lacked sufficient time to study the proposals in detail. The unilateral manner in which the changes were made does not stop with the Rajya Sabha. The proposed changes were not even discussed with the leaders of mainstream political parties of J & K, be it Mehbooba Mufti or Omar Abdullah.

As the Government was explaining its rationale for these constitutional changes, the J & K Administration already began enforcing the orders it had received. Farooq Abdullah, Omar Abdullah, Mehbooba Mufti and other political leaders such as Sajad Lone were placed under house arrest. But before we move to these preventive detentions, let us briefly discuss the Government’s rationale for the constitutional changes it made.

The Government’s rationale and its discontents

For abrogating Article 370 and 35A, the Government gave primarily 3 reasons. First, Article 370 was being used as a tool to fuel separatism and militancy in the Kashmir Valley, and hence needed to go. In this regard, it was also argued that the de-operationalization of Article 370 shall ‘completely integrate’ J & K with India. But, Article 370 never stalled any such integration. The Constituent Assembly of India had envisaged Article 370 to be a bridge between J & K and the Government of India.

It was drafted to govern the manner in which constitutional provisions and parliamentary laws shall be applicable in J & K. The text and wording of Article 370 did not in any way stall or make J & K’s integration with India partial. Moreover, the J & K Constitution (which was also repealed through the statutory resolution) itself stated that J & K’s integration with India is final and complete.

Under Section 3 of the J & K Constitution, the State of J & K “is and shall be an integral part of the Union of India”. This provision of the J & K Constitution was simultaneously repealed, while the Government went about claiming that de-operationalizing Article 370 had ‘completely integrated’ J & K with India.

Second, they argued that abrogating Article 35A shall ensure greater investment and economic activity in J & K and Ladakh, as outsiders would now be allowed to purchase land in the newly constituted Union Territories. What the Government did not say was that outsiders were prevented from acquiring land due to State land laws such as the J & K Agrarian Reforms Act, 1976, and not because of Article 35A.

Abrogating Article 35A alone would have not allowed outsiders to purchase land, as Article 35A itself did not place any such restriction. For precisely this reason, the Fifth Schedule of the J & K Reorganization Act,2019 amended these State land laws, to permit outsiders to acquire land. These amendments were separate, and were not based on any restriction placed by Article 35A.

Third, it was argued that these would lead to ‘more rights’ for the residents of Jammu & Kashmir, as beneficial legislations such as the Right to Education Act, 2009 (RTE) shall now be applicable. What was left unsaid was that J & K had their own version of many of these beneficial legislations. For instance, it had its own version of the RTE i.e. the J & K School Education Act, 2002 – which had equally beneficial provisions. Along with this, the justification given for converting the State of J & K into two Union Territories was that this would lead to ‘better governance’, and that Statehood can be restored once militancy reduces, and the security situation of the State improves.

But, didn’t the Government also say that ‘abrogating’ Article 370 would in itself be a huge step to reduce militancy? And if these changes were indeed so beneficial, why were political leaders and the people of J & K not consulted with and taken on board?

The level of contradictions does not end here. If the Government was so confident of the benefits associated with its decision, then what was the need to keep political leaders under house arrest? And shut down all communication networks (be it internet or landlines) in advance?

The aftermath

The ‘house arrest’ of political leaders

The answer as to why political leaders were immediately placed under house arrest is quite straightforward. Keeping mainstream political leaders in house arrest, by invoking the J & K Public Safety Act, 1978 ensures that they are unable to speak out against these unilateral constitutional changes.

As Omar Abdullah and Iltija Mufti (Mehbooba Mufti’s daughter) mention in recent interviews (see here and here), many detainees were given the option of signing a bond – which would end their house arrest. But, there was a catch. The bond mentioned that they would be released, but the pre-condition was that they would have to fully agree to not speak about any of the changes brought about from 5^th August 2019. The intention was simple – stay silent about all the changes that were made on 5^th August, and you can be set free! If the changes made were indeed so good, then what was the need to ensure people stay silent about them?

If this was not sufficient, a dossier issued by the Police in February, which extended Omar Abdullah’s preventive detention one final time, had stated that he was being detained because he had the ability to ‘instigate gullible masses against the policies of the Central Government’! Yes, the masses were so gullible that there was no need to take them on board before altering the constitutional structure of a State?

A number of political leaders such as Saifuddin Soz have also been subjected to informal detention, where there would be no formal detention order, but the Police would not let the detainee leave his house. When Saifuddin Soz challenged his detention through a habeas corpus petition in the Supreme Court, the J & K Administration contended that it had not detained Soz, and that there was no detention order issued against him.

Justice Arun Misra took this claim at face value, and dismissed the petition. Shortly thereafter, when NDTV and India Today reached Soz’s house, he demonstrated how the Police officers were not letting him leave his residence, stating that they had ‘orders from above’.

Along with mainstream political leaders, even the people of J & K were effectively subjected to detention. Under the garb of preventing mass protests, the J & K Administration invoked Section 144 of the CrPC to enforce lockdowns and curfews throughout the State. Most schools also had to remain shut post 5^th August. While the rest of India faced lockdowns and curfews only after Covid-19 hit us in March, Jammu & Kashmir has been grappling with it since 5^th August. Due to such an extended lockdown and curfew, the Government’s claim regarding an increase in investment and economic activity also falls flat.

Suspension and curtailment of internet and other communication networks

Another major avenue for civil rights suppression was the suspension of internet services, along with other communication networks such as landlines. This suspension commenced on the evening of 4^th August, and has not been completely relaxed even as of today. The blanket ban on internet services continued from August to January. This is now infamously regarded as the longest communications suspension in our history.

The ban was partially relaxed only after the Supreme Court’s decision in the Anuradha Bhasin case, which held that a blanket ban on internet services was disproportionate, and directed the J & K Administration to periodically review its orders. Subsequently, internet services have been allowed at 2G Speed, and landline networks were restored.

When the Supreme Court was petitioned in May to restore 4G internet services, the J & K Administration opposed this move, and made a mutually contradictory argument. They contended that the speed had to be restricted to 2G as there was an increase in militancy and terrorism, and there was a need to pre-empt the misuse of the internet by militants and terrorists. But, they simultaneously contended that 2G speed was sufficient for students to attend online classes during the Covid-19 pandemic, and for doctors to provide telemedicine services. There is a major contradiction in this argument.

If 2G speed is sufficient to attend online classes on Google Meet and Zoom, then why is it not ‘sufficient’ for misuse by militants and terrorists? The Supreme Court failed to address this contradiction, and refused to intervene even after the petitioners presented evidence of the hardships faced by the people of J & K.

Also, while there is no direct link between access to 4G internet and militancy, militancy cannot be used as a justification for a prolonged denial of 4G internet, which is accessed in all other parts of India. This suppression of civil and socio-economic rights is only exacerbated during a pandemic – where students are forced to attend online classes, employees are forced to work from home, and when a significant number of patients can only access telemedicine facilities.

The unilateral imposition of a new domicile policy in the UT of J & K

In the first week of April, the Home Ministry notified a new domicile reservation policy for the Union Territory of J & K. This was also done without any pre-legislative consultation process. After widespread protests that the policy had severely diluted the domicile requirement, the policy was amended within 72 hours. But, how did it become possible in the first place for the Home Ministry to make the reservation policy for J & K? The answer lies in the repeated extension of President’s Rule, which has now been in place since December 2018.

Under the J & K Reorganization Act, 2019, the newly formed Union Territory of Ladakh is to be administered directly by a Lieutenant Governor appointed by the Central Government. But, on the other hand, akin to the Delhi model, the Union Territory of J & K is envisaged to have a Legislative Assembly, along with a Lieutenant Governor.

If President’s Rule had been removed, and fresh elections were held to the Legislative Assembly, then the Home Ministry’s powers to frame policy prescriptions would have been curtailed. In my view, this was precisely the reason why there was no plan to hold elections in J & K even before the onset of the coronavirus pandemic.

Also, while certain sections of the Ladakh population had welcomed the Centre’s decision to carve it out as a separate Union Territory, it was later on realized that the special rights and privileges conferred to the ‘permanent residents’ of the erstwhile State of J & K were automatically taken away, as Article 35A and the J & K Constitution has been abolished.

For this reason, several socio-religious groups in Ladakh have made demands for domicile reservation – that is similar to the special protections that were granted prior to 5^th August. Ladakh has hence also been solely left to the Home Ministry’s mercy, which now has absolute discretion in all policy matters.

The repeal of the J & K Constitution

Finally, let me conclude with the repeal of the J & K Constitution, which often gets excluded from public debate. The J & K Constitution was framed and adopted in 1956 by an elected Constituent Assembly. The purpose behind drafting a separate Constitution was to preserve and safeguard the identity and autonomy of the people of J & K – in a situation where Pakistan was leaving no stones unturned to usurp J & K away from India.

The separate Constitution did not intend to create any parallel legal system, and itself stated in Section 3 that J & K “is and shall be an integral part of the Union of India”. Moreover, Section 147 of the J & K Constitution clearly stated that even the J & K Legislature shall not have the power to amend some of its provisions, such as Section 3, Section 5 and Section 147. If even the J & K Legislature lacked the power to amend the entire Constitution, then how can Parliament abolish it as a whole?

Even if legal provisions were kept aside, there is another fundamental question that we should ask ourselves. How can Parliament unilaterally abolish a Constitution that was enacted and passed by the J & K Constituent Assembly, which consisted of the elected representatives of the people of the State? How can a Constitution, which the people of J & K adopted for themselves, be abolished without in any way taking them on board?

Shouldn’t there also be implied or inherent limitations on Parliament’s power, when Jammu & Kashmir was under President’s Rule, and the views of an elected Legislature could not be taken on board? This is precisely the constitutional betrayal that took place on 5^th August 2019.

The remedy

One year down the line, the situation is far worse than what it was at the same time last year. This can be remedied (albeit partially) only if suppression of civil and socio-economic rights ends in the near future, after full internet connectivity is restored and all political detainees are released. Urgent steps must also be taken to facilitate the return of Kashmiri Pandits - who continue to live in inhuman conditions at refugee camps in Jammu, almost two decades after their forced exile from the Valley.

The long-term goal must be to restore full statehood, and hold fresh elections. Normalcy cannot be restored until we continue to treat J & K and Ladakh in an abnormal manner, and deprive their residents of rights and freedoms that are often taken for granted, in all other parts of India.  

The Gujarat HC's Covid-19 order - Certain troubling observations from a constitutional Court

The Gujarat HC has been proactively examining the State’s handling of the Covid-19 pandemic. The Court took suo moto cognizance of the manner in which the pandemic has been handled in Gujarat, and has issued multiple directions to the State Government. As we discussed in the previous post, the Court had also made a recommendation to regulate private hospitals in the city of Ahmedabad, which accounts for more than half the cases in the State. Once the Ahmedabad Municipal Corporation (AMC) enacted regulations and capped the fees that could be charged by private hospitals, the Court had provided a sound constitutional justification for the same.

To recall, the Court stated that imposing regulations and capping the fees charged by private hospitals was in furtherance of the fundamental right to health under Article 21, as it ensured that a wider section of society could access private hospitals for Covid-19 treatment. The Court had also directed the State Government to take punitive action against those private hospitals that were refusing to comply with the AMC’s regulations. The Court has continued hearing the manner and has issued two more orders on 25^th May and 29^th May respectively.

The order issued on 25^th May concerned the functioning of the Ahmedabad Civil Hospital, which is a government hospital that is at the forefront of the State’s fight against Covid-19. Subsequent to this order, there was a sudden change in the composition of the bench, where the Chief Justice of the Gujarat HC replaced one of the judges who had issued the earlier two orders. The order issued on 29^th May by the new Bench was to follow up on the earlier orders issued by the Court, after examining the compliance reports filed by the State Government. In this post, I aim to highlight certain concerns with the most recent order of the Court, which was issued on 29^th May.

In its 29^th May order, the Court first took note of the status report filed by the State Government. The status report mentioned that the private hospitals which were refusing to comply with the AMC’s regulations were now in the process of complying with the same, after the Court directed the State Government to take punitive action against the defaulting hospitals. This is one positive result of the Court’s exercise of writ jurisdiction, which has brought about accountability in the functioning of private hospitals. The Court also gave an important direction with respect to Covid-19 testing.

It held that for those category of patients who are eligible to get tested under the ICMR Guidelines, the test can be performed by a qualified physician at a public/private hospital, and there would be no need to take additional permission from the District Health Officers. This was to prevent delay in conducting a Covid-19 test in certain urgent situations, such as when an emergency surgery is to be conducted. For other categories of patients who are not covered by the ICMR guidelines, the Court held that the District Medical Officers should grant the necessary permissions within 24 hours – to avoid unwanted delay. Apart from these positive directions, the Court also made certain stray observations which should invite our concern.

Before concluding its order, the Court stated that – “Before we close this order, we would like to express our anguish over the unnecessary debates and comments that are going on as on date on the social media and other platforms. We have gathered an impression that our orders passed time to time in the larger interest of the public are being misused for some oblique motive”. Without elaborating on this aspect of Court orders being ‘misused’, the Court went on to state that – “In these extraordinary circumstances, the role of the opposition is equally important. There is no denying that the role of the opposition is to hold the government to account, but in times like this a helping hand would be more beneficial than a critical tongue”. (emphasis supplied)

Now, these are troubling and disturbing observations from a constitutional Court. The freedom of speech and expression conferred by Article 19(1)(a) envisages a marketplace of different ideas and opinions. This becomes even more important in the emergency situation we are facing today, where criticism and constructive questioning is an important tool to secure accountability of the Government. The Court also goes on to say that “Simply highlighting the flaws and gaps in the State’s handling of the situation only creates fear in the minds of people”.

If this was indeed the case, then the Court should have also completely refrained from discussing the deficiencies in government hospitals such as the Ahmedabad Civil Hospital, or highlighting the State Government’s delay in giving approval for Covid-19 testing! If the Court has the jurisdiction to highlight the flaws and gaps in the State’s policy, then the same naturally extends to civil society, the media and to medical professionals, who can demand accountability by pointing out the flaws in the manner in which Covid-19 has been handled.

Perhaps the most troubling observation has been reserved for the end, as the Court then goes on to state that – 

“All those who cannot extend their helping hand in this difficult times and do anything good for the people at large have no right to criticize the functioning of the State Government. If the State Government would not have been doing anything, as alleged, then probably, by now, we all would have been dead. All that we are doing in this litigation is to keep the State Government conscious and active by reminding its constitutional and statutory obligations”. (emphasis supplied)

The natural implication here is that if you cannot meaningfully assist the State Government, you would have to parrot its voice. It can be nobody’s case that the common man or the poor migrant worker has no right to raise his voice during this crisis. While all of these observations are mere obiter dicta and have no legal force, it is indeed troubling to see a constitutional Court speak in this tone. The Court’s reason for taking suo moto cognizance here was for ensuring that the State Government is held accountable for its actions. But, it is incorrect for the Court to assume that it is the only institution which can ensure accountability.

Accountability can also be secured through constructive ground-reporting by the Media (as journalists such as Barkha Dutt have done), or through the flaws and gaps that medical professionals and civil society organizations may highlight. The Court’s problematic observations also undermine the positive changes that its intervention brought about - where the government was put under pressure to improve the conditions at the Ahmedabad Civil Hospital, and private hospitals were prevented from profiteering. If the Court were to now insist that everybody should speak in one voice, that would only add to the existing issues in Gujarat, and shall solve none.

Before concluding, it is pertinent to refer to the words of the late Dr. Li Wenliang, who was one of the whistleblower doctors who was detained by the Wuhan Police after he warned his colleagues that a novel coronavirus may be emerging. Before his untimely death due to Covid-19, Li had stated – “in a healthy society, there should be more than one voice”. Their Lordships in the Gujarat HC would do well to take note.

The Supreme Court's order on denial of 4G internet services in J & K - An 'Order' without any decision?

On 11^th May, the Supreme Court delivered its order in the petition filed by the Foundation of Media Professionals – praying for the restoration of 4G internet services in Jammu & Kashmir (‘J & K’). The Court directed the constitution of a three-member Special Committee headed by the Union Home Secretary, to examine the contentions of the petitioners. In two earlier posts (see here and here) we have discussed how denial of 4G internet services hinders access to civil and socio-economic rights for the residents of J & K, along with the arguments made in this regard by the petitioners. In this post, we shall discuss the flaws in the Supreme Court order.

The Supreme Court order and its inherent flaws

Before scrutinizing some of the observations made by the Supreme Court, let us first refer to the operative part of the Supreme Court’s order. After taking note of the petitioner’s submissions on infringement of fundamental rights, and the State’s contentions with respect to safeguarding national security by countering militancy, the Court directed the constitution of a ‘Special Committee’ headed by the Union Home Secretary to examine the Petitioner’s contentions and the alternatives that they had suggested. Along with the Union Home Secretary, the Committee constituted shall also include the Chief Secretary of J & K and the Communications Secretary of the Central Government.

It is significant to note here that the Court did not ‘decide’ the outcome of the matter – and disposed off the petition by stating that the Special Committee that has been constituted will examine the merits of the alternatives proposed by the petitioners, and the contentions that they had made. As the Court did not give any other conclusive finding, all the other observations made in the 19-page order can be considered as obiter dicta. But, before discussing the flaws in the Supreme Court’s order, let us refer to two observations made by the Supreme Court.

In paragraph 17 and 18, the Supreme Court referred to the proportionality test it laid down in the Anuradha Bhasin judgment, and noted that internet speed should be restricted to 2G only in those areas where there is an absolute necessity of imposing such restrictions, with the goal of countering militancy and terrorism. It also noted the petitioner’s argument that at present, the restrictions on internet speed have been imposed in a blanket manner throughout J & K, and are not limited to only those areas which are affected by militancy. In paragraph 19, the Court held that in normal circumstances, the petitioner’s submissions would merit ‘full consideration’. But, according to the Court, the compelling circumstances of cross border terrorism cannot be ignored.

Through these observations, the Court is hinting at achieving a fair balance between fundamental rights and safeguarding national security, which is another legitimate State objective. This, as the Court itself notes, could have been achieved by applying the test of proportionality, and holding that the restrictions on internet speed must be enforced only in those areas that are affected by militancy. The Court could have accordingly asked the Solicitor General to submit a list of areas/districts which were considered to be affected, and could have quashed the internet speed restrictions in other areas such as Jammu.

Such balancing of fundamental rights with other legitimate state objectives such as national security is part of the Supreme Court’s function of judicial review under Article 32 of the Constitution. This function of judicial review was abdicated by the Court, as it disposed off the petition by merely asking a Special Committee headed by the Home Secretary to examine the alternatives suggested by the petitioners. Examining alternative measures in accordance with the proportionality test is the Supreme Court’s function, and cannot be delegated back to the Executive, which had imposed the restrictions in the first place.

It is also pertinent to note here that the Court has not directed the Special Committee to report back to it after examining the feasibility of the petitioner’s contentions, and has merely directed it to ‘advise’ the J & K Administration on this issue. This is a redundant exercise for one simple reason. After imposing President’s Rule in J & K, it is the Union Home Ministry which is administering J & K, along with the Lieutenant Governor, who heads the Union Territory Administration and reports to the Home Ministry itself. In this situation, discussion on policy matters such as restricting internet speed may in any case happen on a routine basis between the Home Secretary and the officers of the J & K Administration.

Hence, if the Court wanted further deliberation on this issue, it could have directed the Home Secretary and the Jammu & Kashmir Chief Secretary to report back with their findings, and with a list of districts where there may be an absolute necessity to restrict the internet speed to 2G. Despite the inherent flaws that we have discussed above, there is one significant question that should pique our interest – which is the reason for the deferential approach that Courts tend to show when questions of national security are involved. 

One reason for this may be the fear factor that plays in the mind of the judge – regarding the possibility of having to take the blame of diluting national security interests, if an attack happens after a relaxation of restrictions is ordered. This may force a judge to play safe - and defer to the Executive’s claims of safeguarding national security. Cases which have significant national security implications hence pose difficult questions for a judge to answer.

However, this does not serve as a justification for not reviewing the actions of the Executive in accordance with Article 32, and examining whether there are alternative measures through which infringement of fundamental rights and national security interests can be balanced. While the Court here noted the existence of one such alternative measure - which is to restrict internet speed only in specific affected areas, it refused to give any conclusive decision on enforcing the same. For precisely this reason, this ‘order’ stems from no conclusive finding, and can be considered as an abdication of the Court’s primary function of judicial review.

Denial of 4G internet services in J &K - The hindrance towards effective participation in national affairs

On 4^th May, the Supreme Court continued to hear arguments in the petition filed by the Foundation of Media Professionals – for restoring access to 4G internet services in Jammu & Kashmir (‘J & K’). After hearing arguments from the petitioner as well as the State, the Court reserved its order.

During the hearing that took place yesterday, the counsel for the petitioners contended that in light of the Covid-19 pandemic, a suspension of internet services violates the right to access healthcare services and the right to education under Article 21. It was argued that during this pandemic, a lack of 4G internet services prevents doctors from accessing and implementing latest information and research on Covid-19 treatment. Along with this, it also makes telemedicine impossible to execute for both patients and doctors.

With respect to the violation of the right to education, it was argued that a lack of 4G services prevents students from availing the facility of online classes, which is being implemented in the rest of India. The State on the other hand contended that a restriction on 4G internet services was necessary for safeguarding national security, in light of a rise in militancy in the Kashmir valley, during the last few months.

As we await the judgment, let us consider another important civil rights-based argument in favor of restoring 4G services. This relates to how lack of 4G internet services prevents the residents of J & K from effectively participating in national affairs. As we discussed in an earlier post, a lack of 4G services hinders the residents of J & K from accessing information through the internet. Let us now refer to two instances where lack of access to information through the internet may prevent the J & K residents from effectively participating and contributing to national affairs.

(i)             Lack of internet access hinders doctors and researchers of J & K from contributing to Covid-19 related research and development, as 2G speed is not sufficient for uploading information, as well as downloading existing information that is in the public domain. Unlike doctors from the rest of India, doctors and researchers in J & K shall be hindered from uploading, sharing and disseminating the knowledge that they may have imbibed while treating Covid-19 patients. They are also hindered from sharing and disseminating the research that they may have undertaken, regarding different aspects of Covid-19. 2G internet speed acts as a roadblock for such sharing of knowledge and research, which is being undertaken in all other parts of India. Such participation and contribution to national affairs by sharing and disseminating knowledge is an integral facet of Article 19(1)(a), which clearly stands violated.

(ii)         The deficient speeds of the 2G network hinders the preparation efforts of those who wish to give competitive examinations such as CLAT and UPSC. Deficient internet leads to a situation where unlike aspirants from the rest of India, they cannot access multiple preparation resources that are solely available online. Denial of online sources leads to a situation where they do not have equal opportunities and avenues for preparation, when compared to students from the rest of India. Such denial of equal opportunity by suspending internet services goes against the cardinal tenet of Article 14 of the Constitution, which is that ‘equals should be treated equally’. The denial of equal opportunity to participate in national affairs such as competitive examinations is one discriminatory consequence of this internet suspension.

The two instances referred above highlight how the denial of 4G internet services has a domino effect – where the lack of access to information on the internet hinders J & K residents from having equal opportunity and avenues to contribute to national affairs. Along with denial of access to socio-economic rights such as healthcare and education, this is another civil rights issue which forms the crux of this internet suspension.

This hindrance towards contributing to national affairs may also lead to further isolation and mistrust between the residents of J & K and the rest of India. While we await the decision of the Supreme Court, let us remember that this internet suspension has only created more walls between J & K and the rest of India, at a time when we should be building bridges.

Covid-19 and suppression of information - Drawing parallels between China and Jammu & Kashmir

As the world grapples with the Covid-19 pandemic, the international community has placed significant emphasis on the manner in which China has handled this global health crisis. There has been significant discussion over the manner in which China initially handled the coronavirus outbreak in late December and early January, after it broke out in the city of Wuhan.

In this post, I shall first highlight how China suppressed speech and information after the outbreak broke out in Wuhan, and how such suppression has culminated in a global health crisis. I shall then draw parallels with another prominent instance of censorship and information suppression that we are witnessing today – which is the internet ban in Jammu & Kashmir. I shall argue that both these instances have a common thread – which is that suppression of information can result in adverse consequences for a community as a whole, along with infringing individual rights.

The onset of Coivd-19 and the suppression of information – a brief background

There exists substantial evidence to state that the novel coronavirus (SARS-Cov-2) originated partly or fully from a wet-animal market in Wuhan. There was however no concrete evidence to this effect in December last year, when China had alerted the WHO about a significant number of cases of unusual pneumonia in Wuhan. Around the same time, a Chinese ophthalmologist named Dr. Li Wenliang had alerted his colleagues through a message on the WeChat application, regarding the possible emergence of an illness similar to the severe acute respiratory syndrome (SARS) outbreak of 2003, which could be caused by a novel coronavirus.

As soon as Dr. Li Wenliang raised this alarm, he was, on 3^rd January, summoned by the Wuhan Public Security Bureau and was made to sign an undertaking stating that he had made incorrect statements and had indulged in rumour mongering. He was also made to sign a statement to the effect that he would not commit this ‘unlawful’ act again. Shortly thereafter, the Chinese National Health Commission ordered that no institution should publish any information relating to this ‘unknown’ disease. The Hubei Provincial Health Commission ordered that no new samples of the unknown disease shall be tested, and also ordered for the destruction of all existing samples. Subsequently, on 7^th January, Chinese medical authorities claimed that they had identified the novel virus, and stated that it belonged to the coronavirus family.

However, they continued to hold the view that there was no evidence that this novel virus could spread through human-to-human transmission. In the interregnum, even the WHO deferred to China’s stand, and stated publicly on 14^th January that the preliminary investigation conducted by the Chinese authorities had concluded that there was no evidence of human-to-human transmission of the novel coronavirus that was identified in Wuhan. But, after the first three deaths occurred from the virus, China clandestinely changed its stance and placed the city of Wuhan under effective quarantine on 23^rd January, and suspended air and rail travel from the city. Hence, although the first signs of the disease had occurred in December, the Chinese Government initiated their first measures only on the 23^rd of January, by which time, a number of potential carriers of the virus had travelled out of Wuhan.

Despite a steady increase in the number of cases and the virus spreading rapidly to other countries, the WHO declared coronavirus to be a ‘pandemic’ only on 11^th March, which was almost 45 days after China took its first set of measures in Wuhan. Meanwhile, on 1^st February, Dr. Li Wenliang contracted Covid-19 while treating patients in Wuhan, and passed away due to this illness on 7^th February. Keeping aside the WHO’s delinquency in deferring to the views of China, what is more significant here is the manner in which Chinese authorities suppressed information regarding the emergence of a novel coronavirus after the alarm bells raised by Dr. Li Wenliang. As pointed out above, after silencing Dr. Wenliang, the Chinese authorities also placed an embargo on the testing of new virus samples, and the publication of any information relating to the disease.

As other nations such as Italy, USA and India continue to impose lockdowns to minimize the damage caused by Covid-19, China has already lifted the lockdown of Wuhan on 8^th April, claiming that the rise in fresh cases is well under control. However, in a sudden move last week, the Chinese Government also increased the death toll of those who died due to Covid-19 in Wuhan by 50%, which has amplified concerns regarding information manipulation.

The Covid-19 pandemic – a direct consequence of this suppression of information

Had the Chinese medical authorities investigated upon the red flag raised by Dr. Wenliang, the novel coronavirus could have been discovered in the first week of January itself. Wuhan could then have been locked down well before 23^rd January, by which time there had been significant passenger movement in and out of the city. If there was no suppression of information, the spread of the virus out of Wuhan could have been significantly curtailed.

The above discussion illustrates that the Covid-19 pandemic could have been averted in the initial stages itself, if China had not censored Dr. Li Wenliang and suppressed information regarding the emergence of a novel coronavirus. As George Orwell had presciently highlighted in his classic novel titled – 1984, one feature of a totalitarian regime is that it will manipulate all news and information in its favor, and shall disregard the truth to suit its agenda. From a constitutional perspective, the biggest lesson from the censoring of Dr. Li Wenliang and the subsequent suppression of information by the Chinese medical authorities is that suppression of speech and access to information may, along with infringing on an individual’s fundamental rights, also simultaneously lead to adverse consequences for an entire community. The consequence of the suppression in the present situation is the global health crisis caused by Covid-19.

While we have always tended to look at suppression of free speech and access to information from the perspective of individual rights, we must also keep in mind that this may have large-scale unintended repercussions, such as the pandemic that we face today. These incidents also bring to light certain important lessons for the Indian Government, in light of the continued suppression of information and communication in Jammu & Kashmir, through the internet suspension orders.

Drawing parallels with the internet suspension in Jammu & Kashmir

This suppression of information also has parallels with the internet ban in Jammu & Kashmir, which commenced on 4^th August 2019, and has held fort till today. While the absolute ban on internet access was challenged in the Supreme Court in the Anuradha Bhasin case, the Court only directed the Central Government and the Jammu & Kashmir Administration to ‘review’ their internet suspension orders on a weekly basis. The Court laid down a stringent proportionality standard to review the validity of internet suspension orders, but refused to apply the same and give any relief to the petitioners. It ultimately deferred to the Central Government’s claims of a threat to national security.

The Court looked at this issue from the perspective of Article 19(1)(a) and 19(1)(g) of the Constitution, by holding that freedom of speech and freedom to carry on trade, business and occupation with the internet as a medium deserves constitutional protection. One aspect that the Court did not elaborate upon was that the internet as a medium is crucial for having access to information, and this right to access information through the internet as the medium can also be considered as integral to Article 19(1)(a).

As of today, the ban has only been partially restored, with around 300 whitelisted websites being made available solely on 2G mobile internet network. Despite this relaxation, there is still effectively a ban on the internet in Kashmir, as 2G mobile internet speeds are not sufficient for conducting most internet-oriented activities. It is for precisely these reasons that a fresh petition has been filed before the Supreme Court, demanding the restoration of 4G mobile internet services in the State. Irrespective of the outcome of this petition, which is currently pending before the Supreme Court, it is imperative to keep note of the larger constitutional implications of this internet suspension, which shall be highlighted below.

While India battles with a rapid spread of Covid-19 through a nationwide lockdown, the residents of Kashmir lack proper access to the internet, which is essential for having accurate information about how to tackle the virus, and how to cope up with a lockdown situation. Hence, along with preventing the residents from effectively communicating and disseminating information, the internet ban also prevents them from having access to essential information during this pandemic. This suppression of information access may lead to deleterious consequences especially for patients, doctors and healthcare workers, who may be unable to access research and best practices that are being developed and updated by medical institutions across India, such as the ICMR. Such suppression of information leads to two adverse consequences, which have significant constitutional implications.

First, this lack of information access hinders the residents of Jammu & Kashmir from effectively participating in national affairs. Such freedom of expression through active democratic participation in national affairs can be considered as another integral aspect of Article 19(1)(a), which stands violated. Second, this may adversely affect access to quality healthcare facilities during the pandemic. Access to quality healthcare facilities during a pandemic can be considered as an intrinsic aspect of the right to health, which is part of Article 21. The internet ban may hence result in depriving access to other socio-economic rights, such as the right to health.

This serves as an epitome of the manner in which suppression of civil and political rights conferred by Article 19(1)(a) may also result in unintended consequences, such as hindering access to other socio-economic rights, such as the right to access quality healthcare facilities during a pandemic. Along with looking at this internet ban from the perspective of the proportionality doctrine (as the Court did in Anuradha Bhasin), we should also keep note of the larger constitutional implications that have been referred to above.

The adverse consequences of the Kashmir internet suspension brings us back to our earlier discussion of China’s suppression of information. While China’s suppression of information culminated in a global health crisis, the suppression of information in Jammu & Kashmir has significant constitutional implications for all residents of the Union Territory, especially during the prevalence of this pandemic. Both these instances have a common thread, which highlights the manner in which censoring of speech and information may have pernicious consequences for an entire community, along with infringing individual rights. In this time of an unprecedented global health crisis, individuals, policymakers and institutions such as the Supreme Court may do well to reflect on the manner in which China has put the entire world at risk by not paying heed to Dr. Li Wenliang.