GP Insights

GP Insights # 227, 19 January 2020

India: Supreme Court declares the Internet as a fundamental right
Vaishali Handique

In the news
On 15 January 2020, UNSC held a private meeting with the 15 member body on the Kashmir subject after Pakistan's ally China pressed to discuss the political arrests and ongoing restrictions on the internet access in an international platform.

A three-judge bench of the Supreme Court ruled on 5 January, that the right to internet access as a 'fundamental right' under article 19 was subjected to reasonable restrictions.

The Supreme Court has directed the Jammu and Kashmir administration to review all orders within a week which enforces limitations in the Union Territory since the abrogation of Article 370 by the federal government in August 2019 and to bring back internet facilities for e-banking, trade, government websites, and hospital services. It has also said, any order passed to limit internet services will be subjected to judicial review. 

The Supreme Court also said that the repetitive imposition of Section 144 CrPC is an 'abuse of power' which was used to subdue legitimate expression and also all orders from this time will be published in the public domain which will offer civic a provision for a legal challenge.

This move by China comes after 16 envoys majorly from Latin American, and African nations visited Kashmir to get a grip of the ground situation succeeding the revocation of Article 370 in the Union Territory. 

Issues at large
On 5 August 2019, the federal government scrapped Article 370 and 35A which granted special status to Jammu and Kashmir. The Parliament passed the bill which proposed the division of Jammu and Kashmir into two union territories.

Under article 370 and 35A, special status was promised during the accession of J&K with India, when the princely states were offered with the choice of joining either Pakistan or India after independence in 1947. The special status allowed the J&K to exercise control over the laws in all matters, excluding finance, defence, foreign affairs, and communication. They had a separate constitution and flag, and non-Kashmiris were denied property rights.

Besides scrapping Article 370 and 35A, India also pushed troops to the region, imposed a curfew, and cut off telecommunications and internet services to address security issues. Political leaders were placed under arrest. The administration justified its action that it prevented terrorism, the spread of extremist ideologies and the influence of infiltrators on the border. 

While a section within J&K, especially in the Jammu region welcomed the scrapping of the above two Articles, the Kashmir Valley is opposed to the same. The Valley considers that the conditions imposed on them inhumane and undemocratic. The Kashmiris also fear that this move will alter the demographic atmosphere of the Muslim majority region by permitting non-Kashmiris to buy land there.

Developments within J&K have also undermined the already prevailing tensions with Pakistan leading to cold diplomatic relations. Outside the region, many have voiced the restoration of normalcy to J&K.

In perspective
While the people of Kashmir Valley consider the shut down as undemocratic, unconstitutional and inhumane, the administration considers it essential to maintain order. The State has to find a means to maintain a balance between the two – order and democracy.

Second, developments since August 2019 have also increased the differences between the regions and the communities within J&K. The administration cannot be seen as siding with one community. 

Third, India also has to balance between regional security and international reputation. At the global level, developments relating to J&K is undermining India's status as the largest democracy. Debates within and outside the UN on J&K is harming India's global rise.

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