While letting the Centre off with a rap on its knuckles on the months-long internet lockdown in J&K, the Supreme Court did a delicate balancing act between the imperatives of national security and protecting fundamental rights. However, it removed the wriggle room offered by the 2017 rules on telecom suspension that were invoked for the clampdown by issuing a set of new guidelines. It bluntly said indefinite suspension of internet was impermissible and prescribed the proportionality test.
The Bench did not take kindly to the government’s reluctance to share full documentation on the matter. By giving the authorities a week to revisit the telecom suspension orders, it began a slow squeeze. It said all related paperwork—past and future—must be made public to allow people with grievances seek legal remedy. On the right of internet access, the Bench restricted itself to freedom of speech and the practice of any trade or occupation using the net, saying they were constitutionally protected. Restraints on such rights should be able to survive the proportionality test.
The verdict also removed the arbitrariness that had crept into invoking Section 144 of the CrPC that bars people from coming together, saying it cannot be used to suppress legitimate expression of opinion or grievance or exercise of democratic rights. Henceforth, Section 144 will apply only in emergency situations if there is a clear and present danger to law and order. That emergency must be defined in black and white, and the paperwork placed in public domain to open a window for judicial review.
The magistrate, who is the issuing authority, has to convince himself that Section 144 is proportional and the least intrusive measure before opting for it. Repetitive orders under that section would be an abuse of power. The SC also cautioned against applying proportionality excessively in matters of national security. By goading the government towards transparency in a calibrated way, the Bench created room for executive action without loss of face. One hopes the Centre gets the drift, quickly nuances its position and restores full civil rights in J&K while dealing with terror with an iron hand.