Case Recap: The Kashmir Internet Shutdown

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On August 4 2019, the government of Kashmir shut down mobile networks and internet services in the disputed territory. The next day, the President of India revoked the region’s semiautonomous status. Anticipating unrest, India deployed thousands of army personnel, restricted movement within and across borders, and launched what would be the longest internet shutdown in a democracy. 

A number of Kashmiri citizens, including the executive editor of the Kashmir Times, petitioned the Supreme Court of India to set aside the government’s order to suspend “all modes of communication”, including the mobile networks and internet services. The petitioners argued that the internet shutdown was a restriction on the fundamental right to freedom of speech and expression as protected under Article 19(1)(a) of the Indian Constitution, and the decision should thus be “tested on the basis of reasonableness and proportionality” as required by Article 19(2) of the Constitution.

The court delivered its judgement on January 10th, 2020. It had to first consider whether access to the internet was part of freedom of expression under Part III of the Constitution. The court recognized the primacy of the internet in everyday life: “the importance of the internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet.” It considered the internet as a medium for expression, and not necessarily as a fundamental right in itself. “Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion.” Accordingly, the court found that freedom of expression over the medium of the internet was indeed constitutionally protected under Article 19(1)(a).

The question then turned to whether the internet shutdown, and therefore the restriction of a fundamental right, was carried out in accordance with Article 19(2) of the Constitution. In terms of Article 19(2), the following conditions must be met for the restriction to be constitutional, namely:

  1. The action must be sanctioned by law
  2. Restriction must be reasonable
  3. Must be in the furtherance of inter alia security of the state

The shutdown was conducted under Section 7 of the Telegraph Act, 1885, which gives effect to the Temporary Suspension of Telecom Services (Public Emergency of Public Service) Rules, 2017. Further, the court recognized government’s concerns of terrorism proliferating via the internet during this time. The main contention was the reasonableness of the internet shutdown. The court underwent a lengthy analysis of the legal meaning of “reasonableness”: “The degree of the restriction and the scope of same, both territorially and temporally, must stand in relation to what is actually necessary combat an emergent situation.” The court had to balance the legitimate state objective of security with the impact of restricting citizens’ fundamental right to freedom of expression over the internet.” 

In analyzing the impact of the measures taken by the government, the court found that a sustained internet shutdown without review was unjustifiable. The Suspension Rules indicated that a shutdown of services must be temporary, yet did not define a period that could be considered such. The court held that, notwithstanding this, “an order suspending the aforesaid services indefinitely is impermissible.” The court directed the government to review whether the conditions which warranted the initial shutdown persist, on the basis that restrictions “must not be allowed to extend beyond that time period which is necessary.” The court reiterated that curtailing fundamental freedoms “cannot be done through an arbitrary exercise of power.” and gave the government 7 days to conduct its review.

The following week, the internet was partially restored for “essential services” like hospitals, banks, and government offices. Social media sites and personal internet services, however, remained banned. Then, late on January 24th, 2020, nearly six months since the shutdown was first instituted, the government enabled 2G connectivity for 300 “whitelisted” websites, including social media apps. This decision will be reviewed on January 31, 2020.

The judgment can be said to further access to the internet in India generally by recognizing the internet as a pivotal tool in the realization of well-established fundamental human rights, like freedom of expression. This would make it easier to challenge future internet shutdowns in the courts. However, it is essential that the government of India translate this sentiment into action, and not merely satisfy the order of the Supreme Court for the sake of doing so. We hope that internet connectivity will be fully restored in the Kashmir region soon.

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