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JUDICIAL REMEDIES FOR J&K INTERNET RESTRICTIONS

Focus: GS-II Governance

Why in news?

The Central government has agreed to restore Internet in two districts in Jammu and Kashmir on a trial basis in response to the Supreme Court of India’s approach.

Reasoning against Internet Shut Downs

The Special Rapporteur on Freedom of Opinion and Expression of the United Nations and representatives of other regional organisations, in a Joint Declaration, have pointed out that neither the slowing nor the shutting down of the Internet is justifiable even on national security grounds.

This is because Internet shutdowns or slowdowns are an inherently overbroad restriction for it adversely affects millions of innocent civilians owing to the actions of a few.

Adverse effects of shut-down of 4G services in J&K

The provision of 2G Internet on mobile phones after shutting-down of 4G services has failed to provide any meaningful respite to the people of J&K.

It has become impossible for them to adapt to the pandemic, by resorting, as the rest of India has, to online classes, working from home, tele-consults with doctors or even video calls with family.

Important industries such as tourism, handicrafts and agriculture have faced devastating losses.

Right of judicial review

Two arguments have been advanced to justify the Court’s deferential approach.

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.

The second 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.

The four-step test

The Court in Anuradha Bhasin recognised the proportionality test as the framework for such assessment, under which, the government must provide a four-step justification.

It has to show that:

  1. The restrictions are in pursuance of a legitimate aim (in this case, national security),
  2. They are suitable to achieving that aim,
  3. There exist no less restrictive alternatives that would limit the right to a lesser extent,
  4. The adverse impact of the restrictions are proportionate to their benefit.

-Source: The Hindu

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October 2022
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