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Aug 26, 2020

J&K Internet Shutdown Based on 'Dubious' Legal Framework: Report

The Jammu-Kashmir Coalition of Civil Society has documented the disruptive influence of the communications blockade, and its material cost on the Kashmiri population.
The internet shutdown in J&K has been a fairly controversial decision for the Narendra Modi government. Photo: PTI/Files

Srinagar: The communication and internet blockades imposed in Jammu and Kashmir are premised on a dubious, vague and evasive legal framework easily exploitable for authorities to inflict ‘collective punishment’ and ‘criminalise all forms of political interactions and mobilisation’ as ‘terrorist related’ and threats to ‘national security,’ a new report has observed.

Internet services were cut off in J&K last year, ahead of the Centre reading down Article 370. The outages continue to be enforced intermittently, amid a total ban on 4G network in the former state. Only recently, the government restarted 4G on a ‘trial basis’ in two districts of J&K.

The comprehensive report documenting the vastness of internet blackout, its disruptive influence and material cost on the Kashmiri population was released by the Jammu-Kashmir Coalition of Civil Society (JKCCS) on Tuesday. This is the first ever detailed report on internet shutdowns in J&K. According to InternetShutdowns.in, Kashmir accounts for nearly half of total 413 internet outages that India has seen since 2012. J&K saw 213 days of continued internet blackout from August 5, 2019 to March this year, when 2G services were restored.

The report observes that “the multi-faceted and targeted denial of digital rights is a systemic form of discrimination, digital repression and collective punishment of the region’s residents, particularly in light of India’s long history of political repression and atrocities. The promise of lasting peace, freedom and justice for the people of Jammu & Kashmir is inextricably tied to digital and human rights in the region.”

Most crucially, the report unpacks the legal framework behind the shutdowns in Kashmir. “The climate of deniability and lack of accountability for violations is compounded by the multiplicity of legislation, broad discretionary executive powers, and the lack of effective judicial redress,” it observes.

Also read: A Year Without High-Speed Internet Has Been a Nightmare for J&K’s Entrepreneurs

The legal basis of such shutdowns in Kashmir has previously remained shrouded in secrecy, but that ended on January this year when the Supreme Court pronounced its verdict in Anuradha Bhasin vs Union of India and endorsed the principle of proportionality for internet shutdowns. The judgment also read procedural safeguards into the Telecom Suspension Rules, mandating that all such suspension orders be made publicly available, a timeframe for suspension be specified and a review committee set up. The judgment was slammed for being high on lofty rhetoric and short of substantive action. It stopped short of declaring access to internet a fundamental right, and also did not passed any orders that called for restoration of internet in J&K.

During the courts order, the J&K government failed to furnish specific legal basis or grounds for indefinite internet restrictions, the report observes. Instead, “the only public notifications finally placed before the court were two vaguely worded “sample” orders issued by District Magistrates in two districts under Section 144 of the Criminal Procedure Code, 1973, without outlining how these were related to the indefinite and complete internet shutdown across all Kashmir districts, how many other similar orders were passed, by whom, when or under what circumstances.”

Section 144 of the Code of Criminal Procedure was routinely used by governments to authorise internet shutdowns until the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017 were enacted. But criticism has since originated from various quarters, accusing authorities of continuing to use Section 144 to issue internet blockade orders since the Indian Telegraph Act and Information Technology Act, which govern laws concerning internet shutdowns, offer some degree of checks and balances. The report thus observes that “these unchecked executive powers are a means of bypassing the more stringent legal mechanisms for internet blocking laid down under Section 69 A of the Information Technology Act, 2000 and the Indian Telegraph Act, 1885.”

The Telegraph Act, for instance, defines the competent authority empowered to issue shutdown orders to block the transmission of message in the interest of public safety, but the report accuses police authorities of issuing “oral or tersely worded one line written directives to Internet Service Providers (ISP) instructing them to summarily restrict or suspend operations.”

Such orders, the report writes, are also subject to official deniability. Case in point is the response to a Right to Information query filed by JKCCS, asking for copies of orders which formed the basis of the shutdowns of internet and telephone services in July 2016. “Both the Home Department, Jammu & Kashmir (in charge of the Police) and the Divisional Commissioner, Kashmir (the highest executive authority in the Kashmir districts) stated that no such orders were issued by their office.”

Also read: Give Kashmir Unrestricted Access to the Internet. It’s Long Overdue.

Khurram Parvez, a Srinagar-based human rights defender who heads the JKCCS, told The Wire that the intent of such shutdowns is to stem the expression of political sentiments. “Section 144 is an archaic law which has no place in modern democracies. It’s used to create a permanent state of emergency in Kashmir,” he said.

The report cites a confrontation in Panzgam village of north Kashmir in April this year, where residents staged protests against the stationing and firing of artillery guns from a nearby military encampment in the playing fields of their village.

“Videos and images of women and elderly villagers confronting the military men, with their homes and the 155 mm Bofors artillery guns as a backdrop, began to circulate on social media. Mobile data services were immediately shut down in the entire district, through an emergency order issued by the IGP Kashmir, citing the standard grounds of the “likelihood of misuse of data services by anti-national elements for uploading inciting/objectionable material having the potential of disturbing the public order.” While the official order mentioned a suspension of services for six hours, the shutdown inevitably continued for several days,” the report observed.

Eventually, three civilians, a woman and two children aged 16 and eight were killed, and a 78-year-old man was injured in the artillery duel.

The report documents the overwhelming material cost that internet blockades have exacted in Kashmir. Through an RTI query, the report finds how distress caused by the shutdown led to the increase in number of defaults in instalment payments to the J&K Bank rising from 125 before August 5, 2019 to 11,578 in September 2019. “Most retail shopkeepers in Kashmir have moved their cash collection to Point-of-Sale machines, which rely on mobile internet,” it read.

As per the Kashmir Chambers of Commerce and Industries (KCCI), the region has suffered economic loss to the tune of Rs 40,000 crore, with around five lakh people losing employment since August 5, 2019.

The report examines the impact of internet shutdowns on economy, healthcare, education, press freedom and access to justice. It underlines how the internet blackout hampered judiciary itself. “The website of every High Court publishes a weekly and daily ‘Cause-list’, which provides a list of cases to be heard by the court on the following day or week. It informs the parties involved in a case (along with their lawyers) about the bench that will hear their case, the court in which it would be heard, and the order in which cases would proceed,” it writes. “After the internet shutdown in August 2019, the manner in which lawyers and litigants interacted with the courts was seriously disrupted.”

The internet shutdown in J&K has been a fairly controversial decision for the Narendra Modi government, and has attracted considerable criticism from international forums. While downgrading India’s ratings on the Press Freedom Index, the Paris-based Reporters Without Borders (RSF) said India’s score was influenced by the situation in Kashmir, where restrictions on communications have made it difficult for journalists to operate. In March, Freedom House conferred ‘Not free’ status to Kashmir for the first time.

In May this year, the Supreme Court ordered the setting up of a high-powered committee comprising senior Ministry of Home Affairs and union territory officials to decide upon pleas seeking the restoration of 4G. The outcome of the experiment would be reviewed after two months and its impact assessed by the State Level Committee every week.

“Like the illegal “bonds of good behaviour” and the undertakings coercively extracted from political prisoners (which make their release conditional upon promises of not further participating in protests or political activity) the digital siege punishes Kashmiris for their political beliefs,” the report observes.

Shakir Mir is a Srinagar-based journalist.

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