Context: The Central government has agreed to restore the Internet in two districts on a trial basis. While this is a welcome step, the fundamental rights of the people of J&K will truly only have meaning if the Supreme Court maintains this stern approach and assesses the proportionality of the State’s restrictions.

Right of judicial review

Two arguments have been advanced to justify the Court’s deferential approach. However, both are unsustainable.

• First, that such decisions are not based on objective factors that can be presented to and assessed by a judicial body, but are based on the “subjective satisfaction” of officers who possess exclusive knowledge of the situation on the ground.
  • In 1956, Justice Vivian Bose emphasised this fundamental aspect of the Constitution, when he wrote that if the power of subjective satisfaction was conferred on executive bodies, then “there would be no point in these fundamental rights, for the courts would then be powerless to interfere and determine whether those rights have been infringed”.
  • The Supreme Court, in what is regarded as its nadir, held in ADM Jabalpur that detentions during the Emergency were based on the subjective satisfaction of the Executive and were not amenable to judicial review.
  • In K.S. Puttaswamy, the Court affirmed that our Constitution guarantees that “judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights”.

• The second, and closely related, argument offered is that the Court does not have the competence to review matters of national security.
  • However, this argument taken to its logical conclusion would imply that the Court cannot rule on any complex issue irrespective of its impact on fundamental rights.
  • Indeed, the Court has often ruled on complex issues such as the ban on the use of crypto-currency and the linkage of Aadhaar to SIM cards and bank accounts on grounds of national security and money laundering, respectively, and even struck them down.
  • In these cases, instead of choosing between either refraining altogether or substituting the decision of the government, the Court assessed the quality of the government’s justifications.

The four-step test

• The Court in Anuradha Bhasin recognised the proportionality test as the framework for such assessment. Under this, the government must provide a four-step justification.
• It has to show that the restrictions are in pursuance of a legitimate aim, that they are suitable to achieving that aim, that there exist no less restrictive alternatives that would limit the right to a lesser extent.
• In Foundation For Media Professionals, the government of J&K’s own affidavit revealed that terrorist incidents have continued despite these restrictions.
• But the government failed to explain why less restrictive alternatives such as permitting the use of 4G on verified postpaid SIMs, blocking and intercepting specific numbers, websites or applications, issuing takedown orders of content that incite violence, and limiting restrictions to particular areas for shorter durations could not be applied.
• Finally, on the impact of restrictions, the government asserted that people can download e-learning applications, e-books, use websites and messaging platforms on 2G Internet. Not only is this statement factually incorrect, it also contradicts the government’s own claim that the restriction to 2G speed is suitable as it restricts terrorists from communicating and circulating videos.

Reference:

https://www.thehindu.com/opinion/op-ed/judicial-remedies-for-the-jk-net-restrictions/article32378877.ece

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