J&K – The issues around the state

[op-ed snap] Eloquently reticent: On validity of J&K curbsop-ed snap

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Restrictions on the fundamental rights, Constitutional protection to the use of internet.


Context

The SC verdict on the restrictions has some important takeaways.

What the SC verdict means

  • Infinite ban on internet impermissible:  It states categorically that an indefinite ban on the internet is impermissible, but fails to direct the restoration of services. 
  • Section 144 and legitimate expression of opinion: The SC said that Section 144 of the Code of Criminal Procedure “cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights”.
  • No ruling on the Govt. actions: The disappointing aspect of the verdict is the court’s failure to give a ruling on the validity of the government’s actions.
    • The ruling fails to hold the government to account for the manner in which it exercised its powers.
    • It states categorically that an indefinite ban on the internet is impermissible, but fails to direct the restoration of services.
    • The SC does not go beyond directing the authorities to review all their orders and restrictions forthwith.

The key takeaways from the verdict

  • Internet use constitutionally protected: The use of the Internet as a medium for free speech as well as for trade and commerce is constitutionally protected.
  • Test of proportionality: It also lays down that any reasonable restriction on fundamental rights, be it an Internet ban or a Section 144 order, will have to survive the test of proportionality.
    • The proportionality test means that is, the restriction should be proportionate to the necessity for such a measure.
    • At the same time, it cautions against the “excessive utility” of the proportionality doctrine in matters of national security.
  • No secret orders: The government is bound to publish all orders it passes regarding such restrictions so that they can be challenged in a court of law.
    • While the government’s stand that it could not produce all the orders on the restrictions imposed the SC did not strike them down on that ground.

Conclusion

The SC judgment, while laying down some important principles in a fundamental rights case, appears to have the character of an advisory opinion.

 

 

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