Does Security Trump Citizens’ Rights?

National security is and shall remain of paramount concern in any country but can rights of citizens be deferred or suspended for an extended period of time in the name of national security?

Kumar Kartikeya

WITH around 687 million internet users, India is ranked second largest sitting only one step behind China.

On August 5 last year, BJP led Central Govt successfully tabled the Jammu and Kashmir Reorganization Bill, 2019. The Act rendered the Article 370 and Article 35A of the Indian Constitution void. This annulled the Special Status granted to Jammu and Kashmir by the Union of India at the time of its accession. Further Jammu and Kashmir was divided into two union territories. A security clampdown was launched and civil liberties of citizenry suspended which were partly restored later. One year on the government is yet to restore internet services in the newly carved out Union territory fully leaving 13 million people virtually disconnected from the cyber world.

While the government stated security reasons for suspending the services, there has been no major escalation since August 5, 2019 and Kashmir has by and large remained peaceful. In January this year authorities restored 2G internet services in phases. With educational institutions and offices resuming work from November without any internet connectivity, step by step opening of internet services was thought to be the way forward by everyone. But this didn’t happen.

After the outbreak of Novel Coronavirus (COVID-19) in India, the nation went into a rigorous lockdown, which resulted in closing of all the educational institutions and businesses. Educational institutions took a decision in favour of starting online classes through webinars and group calls. Even prestigious institutions like University of Delhi and Indian Institute of Technology announced taking exams and classes via video conferencing. Webinars and other modes of online learning need fast, steady and working internet services, which are available almost throughout the country except for J&K, leaving millions of students in J&K without any way to access these methods of learning.

This stood as a big roadblock for the students who were not able to access the internet and attend their classes. Moved bythis situation, many human rights activists and advocates of civil liberties applied pressure on the government to restore 4G network services. But the government has remained reluctant to do so. Officials contended that 2G is enough for the people to attend classes and continue their work, stating that some militant organisations use networks to plan attacks and mobilise people for protests.

What they fail to understand is that if websites and e-learning activities can be carried out on 2G networks, then the same are also equally sufficient for all militant and insurgency-related activities to be executed. But why would students, businessmen, doctors, lawyers and others suffer because of the failure of governments to restore law and order? With government refusing to restore 4G in J&K, some people moved apex court for justice. After listening to both sides, the court gave an unlikely order of keeping the decision about 4G restoration in the hands of the Executive by forming an “Executive Review Committee” instead of a judicial review committee.

The way the judiciary gave the Executive the decision-taking authority. This shows how this matter was mishandled. The court’s judgment also states that the executive committee should “advise” the government. However, the judgment sets no deadline for the executives to complete the executive review. While the whole union territory suffers from lack of Internet, the court ruling gives the Executive an indefinite time to deny high-speed internet connectivity to the entire population of J&K.

The question that needs answer is whether the citizens should be denied personal liberties on grounds of national security? While national security has always been an important aspect of the Indian Union , there has been a divide between national security and individual liberty for a long time now. No one can deny the fact that national security is important for the people, but can someone’s right be deferred and taken away for a long period in the name of national security? Giving cardinal importance to national security, the constitutional courts must figure out whether the restrictions on fundamental rights are minimal, essential, and proportionate.

Obstructing individual freedoms in times of war has led to some great, yet temporary victories. For example, in dissent of the legislation, the House of Lords in England believed that national security is an issue of political administration and executive, as reflected in their decision in the landmark case of A vs The Secretary of State for the Home Department. They stated that it was the duty of the constitutional courts to have a thorough review, if in case the rights of an individual are being infringed. It would be an impossible task for the House of Lords to handover the strings of justice to the executive as done in India.

The fact remains, our constitutional court did not even do a prefatory investigation on the proportionality of the issue. Certain questions were left unanswered to the civilian residents of the union territory, like whether the existing militancy and involvement of many militant organizations is substantial enough for an indefinite and complete suspension of 4G internet access to the entire J&K?

The prima facie pieces of evidence don’t show that the denial of 4G services has kept the acts of militancy on a tight leash.On the other hand, the government has told the hon’ble court that there has been an increase in a number of terrorist activities since the Article 370 was revoked .

Constitutional courts are guardians of fundamental rights.Their role is to look out and act as a dyke to such unjust intrusion on the fundamental rights of the citizens of India. Suspension of 4G in J&K has made the life of the people there unnecessarily difficult. When the whole nation is working from home using 4G mobile services, 13 million people of J&K have to struggle to remain hooked to internet via 2G networks. From a constitutional point of view, the Supreme Court has not done enough justice to the people of the union territory, but we live on in the hope they do so in the coming times. The review committee formed by the Supreme Court has not met even once and even if they do, it’s highly unlikely to reach a decision in favour of lifting the suspension of networks, as the suspension was put in effect by the Executive in the first place.

When the Solicitor General, on behalf of the government ardently stood in favour of 2G services, it is surprising that the constitutional court is expecting any form of relief for the people of J&K from the special review committee. Turning a blind eye to the fundamental rights in the name of national security is a point of serious concern, and a breach of the rights of the citizens of the nation. If the judges of the apex court start keeping the writ petitions aside, it will be just a matter of time before the citizens will start losing faith in the judicial institutions. If people lose faith in such institutions it won’t be wrong to quote Nathaniel Hawthrone: “…Such loss of faith is ever one of the saddest results of sin”. This is the time for constitutional courts to redeem themselves and act touphold the fundamental rights of people.

  • Kumar Kartikeya is an aspiring lawyer with a keen interest in study of Constitution, Law and Public Policy

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