Favouring public order over justice (SC rules on the legality of internet shutdowns)

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 Favouring public order over justice (SC rules on the legality of internet shutdowns)

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• Legality of internet shutdowns: The Supreme Court ruled on the continuous shutdown of internet and telecom in Jammu and Kashmir, and it was based more on legal centrism rather than advancement of fundamental rights.
• Balancing liberty and security: The SC ruling showed that instead of speaking for citizen rights, it favoured working out a compromise between liberty and state security. But the petitions were narrow, and not broad-based.
• What was challenged: Petitioners didn't challenge the GoI's right to shut down telecom and internet under the Telegraph Act and Internet Suspension Rules. They challenged the orders passed under these laws. Those orders weren't publicly available, and Centre made only a few reluctantly available (even to the SC) when pressed for.
• Sealed cover jurisprudence: Under ex-CJI Gogoi, such opacity was not uncommon, as "sealed cover jurisprudence" took over! But this time, the Court rejected the Government's secrecy claims, and ordered the publication of those shutdown orders. Sadly, it didn't review those that came to it.
• Link between fundamental rights and access to internet: The SC had to examine the admin and executive actions, from the perspective of fundamental rights. 

1. SC reminded the govt. of the proportionality doctrine - 'complete blocking perpetually is unacceptable'
2. A periodic review of 7 days was set (by a Committee - but will it be independent enough to overturn any oder?)
3. Citizens objecting to shutdowns may find it very tough to represent themselves before such a committee due to procedural hassles.
4. SC rejected many of the Centre's arguments, but finally accepted the national security argument.

• Nothing new: Earlier SC orders in Shreya Singhal case (Section 66A), and orders related to National Telecom Policy and Net Neutrality Rules had laid out "the right to access the internet" already.
• Limited rights doctrine: The SC has tried to remove the fear in the public mind about loss of constitutional supremacy. This, when the public has lost a lot of faith in institutional ability to remedy any wrongs. 
• Judicial centrism: So, the SC has chosen the centrist path - stick to basic constitutional norms to maintain legality, but show relunctance to expand upon rights. But that maintains the status quo. How? The review of orders was to be done by J&K govt. only (the one that imposed them).
• Order, Order, not Justice: So the SC has opted for order than justice, a 'negative peace' of absence of tension, than a 'positive peace' of justice.
• Go to High Courts: The SC turned statist. Now the only recourse is approaching the High Courts, a costly process.
• We the people: Indian citizens need to rise and encourage the institutions to move away from centrism to progressive assertion.
• Summary : The Supreme Court's verdict on internet shutdown was a centrist version of law, it maintained constitutional legality but did not punish the state for taking away fundamental freedoms.

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