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Indian security forces personnel patrol a street in Srinagar on January 10, 2020. Press freedom concerns persist in Jammu and Kashmir, where internet has been only partially restored after a months-long shutdown. (Reuters/Danish Ismail)

Lawyer Mishi Choudhury on what India shutdowns ruling means for journalists

By Kunal Majumder/CPJ India Correspondent on January 16, 2020 3:46 PM ET

On January 14, the Jammu and Kashmir administration partially restored mobile internet in a handful of districts, according to news reports. The administration, which is directly controlled by the Indian government, had imposed a complete communication ban in the restive region after withdrawing its special status under the Indian constitution in August 2019, as CPJ reported at the time. The relaxation this week came after the Indian Supreme Court ruled on January 10 that such bans must be proportional and subject to judicial review, and that the government must publish and review all shutdown orders every seven days.

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Only websites of essential services like banks and government agencies are accessible via mobile in the partially connected districts, which are all in the Jammu region of the state, according to an official order reproduced by news website The Wire. As of January 16, districts in Kashmir lacked even that; broadband in those districts was still limited to major institutions, according to news website Scroll.in.

Numerous local journalists have told CPJ that the internet shutdown has heavily impacted their work in the last five months, including Anuradha Bhasin, editor of the Kashmir Times, whose petition prompted the Supreme Court’s review.

In response, the three-judge Supreme Court bench affirmed that freedom of speech and professional activity “using the medium of internet is constitutionally protected,” but did not instruct the government to immediately withdraw the ban or to ensure journalists have internet access, according to the ruling and an analysis by the local Internet Freedom Foundation.

CPJ spoke with Mishi Choudhary, a lawyer who practices in India and the U.S. and founder of the Software Freedom Law Center India (SFLC.in), about the ruling and what it means for press freedom.

The interview has been edited for length and clarity.

On January 14, the Jammu and Kashmir administration partially restored internet in the region. Do you think the Supreme Court judgment helped?

Yes, the positive is that shutdown orders have to be reviewed. From that perspective, there has been an immediate impact of the judgment.

[But] it is a temporary and limited relief. Only low speed 2G internet services on post-paid phones in some districts in [Jammu] are working. Even there, the internet providers are allowing whitelisted websites like banking and government sites, not social media websites.

Overall, what do you think about the judgment?

There is good and bad. As a lawyer, I'm looking for what I can use for the next case. From that perspective, the judgment ordered for transparency and held that any curtailment of fundamental rights should be proportional. The government cannot have a free pass to put a complete internet blockage in place, and blocking perpetually cannot be accepted. This is encouraging.

The court did not say the right to access the internet is fundamental, as the Kerala High Court has declared. The court can only decide on things which have been argued before it, and this was not argued by the counsel for the petitioners. Instead, the Supreme Court went a roundabout way to say that the right to freedom of expression and right to carry on any trade using the medium of internet is constitutionally protected. This means that any curtailment of these rights has to be within the boundaries laid down under the constitution.

The judgment says suspending internet indefinitely is not permissible. This gives a little bit of relief. But no-one went into the constitutionality of the telecom suspension rules themselves. Most internet shutdowns come under Section 144 of the Code of Criminal Procedure, which is to handle law and order. The Supreme Court says that [these shutdowns] should not be repetitive so as to amount to an abuse of power. Every time an internet shutdown happens, you have to go back to court and say if it is an abuse of power or not. This also tells me if the internet shutdown is for a limited period of time it may be acceptable if there is apprehension of danger.

What does the ruling have to say about press freedom?

Freedom of the press is not recognized as a separate right [under the Indian Constitution]. It is always subjected to the same restrictions as free speech and expression. [The ruling] says “journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to be hanging over the press indefinitely.”

As much as this sentence is being celebrated, frankly I don't know what it really means. What does “accommodated” mean? What does it mean by “indefinitely”? Then they say because the petitioner has resumed publication, “we do not deem fit to indulge more in the issue other than to state that responsible Governments are required to respect the freedom of the press at all times.”

I do not think this judgment should be celebrated. I’m not standing in the court citing this judgment. I might say [a shutdown] must not happen indefinitely but I'm sure the other side will say we are only doing it for a limited period. It can be read either way.

The Supreme Court took five months on a verdict in this case. Do you think lower judiciary can take up such cases and deliver judgment on time?

Technology is moving at a pace that is very difficult for anyone to keep up with it, let alone justices who are expected to rule on everything.

I have been arguing in the Supreme Court of India for a long time now. There is no technological matter of importance in which SFLC.in was not associated in one form or another. A few of the judges show great preparation and interest in technology, but not everyone. And it is a very expensive place to litigate. Anyone who is going to be spending that kind of money will obviously bring in lawyers who are better prepared. The level of discourse and argument will be better [than in lower courts].

I will give you an example. During the ongoing Citizenship Amendment Act protests, there was a temporary shutdown in New Delhi, the first ever. The order come from the Deputy Commissioner of the Delhi Police Special Cell. We challenged it in the Delhi High Court. We didn't even challenge the constitutionality of the order. We went on very narrow grounds, saying the DCP doesn’t have the authority to impose it under the telecom suspension rules.

The Delhi High Court dismissed our petition because the government disputed any procedural lapse, telecommunication services were only put to a halt for four hours, and if any person is aggrieved, he can always file his own writ petition. To my mind as a lawyer, if the government says it has done everything right, the court will just accept their version. And every aggrieved person is expected to come to court on their own.

[Editor’s Note: Internet and SMS services were shut down in New Delhi for four hours on December 19 during protests against a new citizenship law considered discriminatory against Muslims, according to Reuters and digital media monitoring site Medianama.]


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