January 14, 2020 – The Supreme Court of India passed a landmark judgement on January 10, 2020, declaring the blackout of digital communication in Jammu & Kashmir, ‘impermissible’. The Internet in the region has been, at the time of writing this story, in effect for exactly 163 days, resulting in seven million residents locked out of the internet.
The judgement suggests that the government of India review their decision to block the internet in Kashmir for an indefinite period when it, in fact, can only be an extraordinary measure for a temporary period. The blackout in Jammu and Kashmir is now the longest Internet suspension in any democracy and raises important questions about the state of freedom of expression in the country.
The Internet Freedom Foundation (IFF), a civil rights organisation defending online freedom, privacy, and innovation in India, terms it “just the beginning of a long uphill campaign”. According to the press release by IFF, “the Supreme Court’s judgement in Anuradha Bhasin v. Union of India is a step in the right direction but fails to provide immediate relief to Kashmiris” in the wake of this undue communication shutdown.
The judgement outlines three procedural safeguards from India’s Telecom Suspension Rules in order to ensure transparency and accountability in the Internet suspension process. It highlights that along with all the telecom suspension orders be publicly available, these orders should be time-specific, and be reviewed every seven days to determine their necessity.
The judgement also specifies that a vague mention of ‘war on terror’ can’t be used as a reason to disrupt communication, instead, it should only be done if and when the speech poses an imminent threat to security. The judgement also recognises freedom of speech as a fundamental right guaranteed under Article 19(1) of the Constitution of India, and only under reasonable restrictions outlined under Article 19(2) and 19(6) can the state restrict this right.
The judgement, however, did not identify the 163-days long internet shutdown as ‘unconstitutional’ on account of not having the State produce all orders of this suspension. The IFF says, “State’s refusal to produce orders citing logistical inference was clearly held to be untenable but despite this, the Court has allowed the State to get away with frustrating the fundamental right to judicial review by unjustifiably withholding orders.”
The Court order further fails to recognise the damage this internet shutdown has already caused to Kashmiris, not only psychologically but also physically and monetarily. According to a story published in Guardian, “It has also […] cost lives; how many, they say they will never know.”
A research published by 10TopVPN finds that Internet shutdowns were estimated to have cost over USD 8 billion to the global economy. In particular, the total cost of network suspension in India, according to this report, is suggested to be over USD 13 million. Countless businesses have been affected on top of the stress that the Kashmir’s internet shutdown has caused to people worldwide worried about their families in the region.
In 2018, the Islamabad High Court declared Internet shutdowns in Pakistan illegal. The decision was, however, challenged by the Federal Government and a stay order was issued on the judgement.
Hija is a Programs Manager at Media Matters for Democracy. She combines her experience in digital rights in Pakistan to lead digital rights and internet governance advocacy of MMfD. She tweets at @hijakamran