IIt took about 78 days for the news of Manipur to reach the world. The anger and shame that echoed across India is now being truly felt across humanity, because such is the nature of the internet. The reason incidents of violence in the state have been hidden from us for so long is because the Indian government feels empowered to shut down the internet, more frequently and more intensely than any other democracy.
Chief Justice of India DY Chandrachud was right in saying that this situation creates “The greatest abuse of constitutional abuse” , But it is insufficient to identify the crisis solely as a failure of the government to fulfill its responsibility. The important task here is to restore public order and stop this inhuman cruelty.
unconstitutional shutdown
We can clearly see that there is another constitutional crisis. A crisis in which the unconstitutional power to shut down all internet communication for months at the expense of people’s civil rights and liberties. The source of that crisis is the wrong decision of the Supreme Court itself Anuradha Bhasin vs Union of India, The way out of this crisis lies in the power of the Chief Justice of India and the Supreme Court.
Internet shutdowns are the most widespread form of what is called “prior restraint” by US First Amendment law. This includes the use of state power to ‘stop’ speech, already, and ban its publications so that it does not reach anyone. This is distinct from civil liability or criminal prosecution of speakers after they have delivered a speech. A fundamental tenet of the US Supreme Court’s First Amendment jurisprudence is that prior restraints are allegedly unconstitutional, even though speech may be constitutionally subject to subsequent punishment.
Internet shutdowns are a form of widespread preemption, in which the government shuts down all communications to prevent relatively small amounts of speech – no matter how innocent – that is prosecutable as sedition or incitement to violence. Due to the immense success of Unified Payments Interface (UPI), prolonged internet shutdowns disrupt the entire flow of payments through the economy. Such disruptions make the poor suffer all the disadvantages of demonetisation, but continuously and indefinitely. Lockdowns like those in Manipur and Kashmir – which last for more than 552 days – are tantamount to an economic war against civil society in today’s digital India.
Read also: Supreme Court order on CEC is bringing back old era of judicial activism, declare CJI as God
Misreading American Affairs
In the Anuradha Bhasin case, the Supreme Court established a baseline of constitutional acceptability for internet shutdowns, governed by limits that have become completely irrelevant. The Court extensively surveyed American constitutional jurisprudence, but in doing so it made a fundamental mistake—relying on inapplicable cases relating to criminal liability for sedition or incitement, not on cases of prior restraint. did it consider the US Supreme Court’s refusal to ban its publication in 1971 the pentagon papers By the new York TimesThe Indian Supreme Court would have been forced to draw a different conclusion.
The Anuradha Bhasin judgment emphasized the primacy of “proportionality” analysis in the conflict between governmental powers to ensure the security and fundamental rights. In dealing with what the Court itself called the “draconian” measure of internet shutdowns, it emphasized that the intervention must be “necessary”. It must be the “least restrictive means” of achieving the essential objective of the government and should be subject to judicial review. But after declaring this “proportionality” analysis to be the paramount requirement—a conclusion that is only valid given its misinterpretation of American cases—the Court utterly failed to apply it.
Could shutting down the entire system of social communication and completely collapsing the payment economy for months be “proportionate” to the urgent problem of preventing inter-communal riots from inciting? If this government intervention is the “least restrictive means”, what are the other more restrictive means that the government would not be allowed to use? The mind gets confused.
A complete ban on all speech and destruction of the market economy in Manipur has been extended for 78 days, but public order has yet to be restored. In what sense can it be “necessary” and “proportionate” to continue?
If the shutdown should be subject to judicial review, is the government not bound to present reasons for the action beyond a mere claim of necessity? An outright ban on all communications and general payments without detailed justification is not a “reasonable ban” by definition and its approval by judges is not “judicial review”.
Finally, a valid assessment of the proportionality of government action must consider the direct harm caused by its actions in shutting down the Internet. In Manipur we see the extent to which the Supreme Court turned a blind eye in the Anuradha Bhasin case. Shutting down the internet could prevent India and the world from seeing the public disorder and damage caused by crimes against humanity. It also prevents and empowers people to demand government action to protect their people. The shutdown does not generate the social and political will to protect our people, rather it is a cover for the government to hide its embarrassment.
Mishi Chowdhary is a technology lawyer based in Delhi and Eben Moglen is a legal scholar. Thoughts are personal.