Impact of Scrapping of Article 370 on the Fundamental Rights of the Citizens of J&K

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Impact of Scrapping of Article 370 on the Fundamental Rights of the Citizens of J&K | Overview

• Introduction
• Striking a balance between the nation’s safety and individual’s rights
• Violation of fundamental rights under articles 14, 19 and 21
• Impact of restrictions on freedom of expression over the medium of internet
• Restriction under Section 144
• Justifications given by the government
• Conclusion

Introduction

Article 370 and Article 35 (A) which gave the state of Jammu and Kashmir a special status has been scrapped on 5^th August 2019 through a presidential order. The order, “in concurrence” with the Jammu and Kashmir government, promulgated Constitution (Application to Jammu and Kashmir) Order, 2019, by which the Constitution of India would become applicable to the State. The order superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 and the provisions in the Constitution of India would apply thereafter.

This particular move by the Modi government came amid mounting tension in the state. As a preventive measure, the government has put the top political leaders under detention and restricted their movement. Further, it also suspended telecom and internet services in the state. All these had ultimately affected the fundamental rights of the people of Jammu and Kashmir severely. The government’s want to put an end to the special status is given to Jammu and Kashmir by abrogating Article 370 and Article 35 A and the people’s opposing views, has put the state’s interest and the people’s interest in the collision. So, it becomes important to ensure that the fundamental rights of the people are not being infringed in the said process.

This article would explore how the fundamental rights of the people of Jammu and Kashmir are violated by the orders passed by the government.

I. Striking a balance between the nation’s safety and individual’s rights

The commonly posed question is whether the state can infringe all rights and freedoms of its citizens with proper safeguards against arbitrary infringements.

“Few would argue against the legitimacy of governments placing limitations on fundamental rights in order to ensure the physical well-being of their citizens and the ultimate safety of the state against internal and external threats.” [1]

Also, states have often limited the rights of some citizens—even if it meant “violating” the law—because they deemed such actions necessary to protect the nation.

As Lincoln famously argued on July 4, 1861,

“Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” 

In other words, the government must prioritize national survival in wartime because constitutional liberty would be worthless if there was no national government left to uphold the Constitution.

However, states must exercise caution while striking a balance between the nation’s safety and citizen’s rights and freedoms. The state has the most important duty of ensuring the safety of the state while providing liberty to its people. The Supreme Court has propounded as follows,

“The question before us, simply put, is what do we need more, liberty or security? Although the choice is seemingly challenging, we need to clear ourselves from the platitude of rhetoric and provide a meaningful answer so that every citizen has adequate security and sufficient liberty. The pendulum of preference should not swing in either extreme direction so that one preference compromises the other.

It is not our forte to answer whether it is better to be free than secure or be secure rather than free. However, we are here only to ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time.”[2]

Thus recognising the tenuous relationship between the interests of the state and individual liberty it is henceforth necessary to ensure that there is no unreasonable and arbitrary usage of power in an illegal or unconstitutional manner without due regard to the constitutionally protected fundamental rights. It is necessary to strike a balance between liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner.

II. Violation of fundamental rights under articles 14, 19 and 21

In order to establish the violation of fundamental rights, it becomes essential to subject the rights given by the constitution to the reasonable restrictions laid down on them. When the restrictions are found to be unreasonable then this indicates the violation of fundamental rights. This section analyses how the restrictions imposed by the government has affected the freedom of movement, freedom of speech and expression and right to free trade and avocation provided under Articles 14, 19 (1) (a), 19 (1) (g) and 21.

In this context, we have to first examine the nature of the fundamental rights provided under the Constitution.

The nature of fundamental rights under Part III of the Constitution is well settled. The fundamental rights are prescribed as a negative list, so that “no person could be denied such right until the Constitution itself prescribes such limitations”.

The golden triangle of our Constitution

In T.R. Kothandaraman v. T.N. Water Supply & Drainage Board[3], the Supreme Court observed that,

“The golden triangle of our Constitution is composed of Articles 14, 19 and 21. Incorporation of such a trinity in our paramount parchment is for the purpose of paving such a path for the people of India which may see them close to the trinity of liberty, equality, and fraternity.”

Article 14 – Equality before the law

The state shall not deny any person equality before the law or equal protection of law within the territorial limits of India or prohibition on the grounds of race, caste, religion, sex or place of birth.

Article 19 – Right to freedom

Protection of certain rights regarding freedom of speech and expression. All citizens shall have the right to:-

• To freedom of speech and expression,
• To assemble peacefully and without arms,
• To form associations or unions,
• To move freely throughout the territory of India,
• To reside and settle in any part of India, and
• To practice freely any profession or to carry on any occupation, trade or business.

Article 21 – Right to life and personal liberty

No person shall be deprived of his personal liberty except according to the procedures established by law.

Explanation:

The right to equality under Article 14 is a concept of wider dimension and it is antithetic to arbitrariness. So, arbitrary action violates Article 14 and every action to follow the principle of equality has to be reasonable.

Also every procedure under Article 21 of the Constitution must be reasonable. That means it must be fair, just and reasonable and not arbitrary or oppressive. Any procedure that is not fair, just and reasonable is not a valid procedure at all.

Further, in Maneka Gandhi v. Union of India[4], the court held that each Fundamental Rights are not distinct from each other whereas they are mutually dependent on each other. Bhagwati J. held that the procedural law has to satisfy the stipulations given under Articles 14 & 19 to be a valid law under Article 21.

In Puttuswamy v. Union of India[5], Chelameswar J. provides a good overview by highlighting that, the requirement of reasonableness pervades throughout Part III, albeit operating slightly differently for different fundamental rights. Thus, a violation of fundamental rights by an arbitrary State action would attract,

1. a “reasonableness” enquiry under Article 14;
2. an invasions that implicate Article 19 freedoms would have to fall under the specified restrictions under this constitutional provision like public order, obscenity etc; and
3. Finally, intrusion into life or personal liberty under Article 21, would have to be just, fair and reasonable.

Hence, these rights has to be read together since they play an important role in the protection of freedoms and prevention of government capriciousness and arbitrariness. This is why articles 14, 19 and 21 are said to be golden triangle of Indian Constitution.

III. Impact of restrictions on freedom of expression over the medium of internet

Thus from the above discussion, it is made clear that the fundamental rights itself connote a qualitative requirement wherein the State has to act in a responsible and reasonable manner to uphold Part III of the Constitution and not to take away these rights in an implied fashion or in a casual cavalier manner.

Article 19(1) (a)

    “All citizens shall have the right to freedom of speech and expression.”

Article 19 of the Constitution has been interpreted to mandate the right to information as an important facet of the right to freedom of speech and expression.  In today’s world, the internet stands as the most utilized and accessible medium for the exchange of information.

The court in Anuradha Bhasin v. Union of India has held that freedom of expression through the internet is one of the “integral parts” of Article 19(1) (a).

The freedom of speech and expression over the Internet is protected by Article 19(1)(a) and Article 19(1)(g) of the constitution and that if they are restricted, it should be done according to the proportionality test.

Thus, freedom of speech and expression through the internet is a fundamental right under Article 19(1) (a) and restrictions can be put in accordance with Article 19(2).

It is clear that the right to freedom of speech and expression is not an absolute right and is subject to reasonable restrictions under Article 19 (2), which says as follows:

“Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

The government can impose restriction as long as they are sanctioned by law, reasonable in nature and for a legitimate purpose. ‘Reasonable’ is limited to as interests of the sovereignty, integrity, security, friendly relations with the foreign States, public order, decency or morality or contempt of Court, defamation or incitement to an offence. Also, the order should not be an arbitrary one.

Proportionality test

The Court in CPIO v. Subhash Chandra Aggarwal,2019 define proportionality as follows,

“…that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question…”

It can be easily summed up in Lord Diplock’s aphorism ‘you must not use a steam-hammer to crack a nut if a nutcracker would do?’

In Modern Dental College & Research Centre v. State of Madhya Pradesh[6], that “no constitutional right can be claimed to be absolute in a realm where rights are interconnected to each other, and limiting some rights in the public interest might, therefore, be justified.” Whenever two fundamental rights are in conflict, they must be balanced so that they “harmoniously coexist with the others.” 

The Court in K.S. Puttaswamy[7] held that five sub-components of proportionality must satisfied:

1. legitimate goal
2. the existence of a rational connection
3. necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim
4. necessary to protect them
5. provide sufficient safeguards relating to the storing and protection of centrally stored data.

The Court added that “the degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.”

The court in Anuradha Bhasin v. Union of India[8] while explaining the connection between ‘reasonable restrictions’ under Art. 19 and the principle of proportionality, opined that proportionality is embedded in the reasonable restriction that is being placed on the corresponding right under Article 19.

The ‘reasonable restriction’ seeks to strike a balance between the freedom guaranteed by any sub-clause of clause (1) of Article 19 and the social contract permitted by any of the clauses (2) to (6).  Thus the expression ‘reasonable’ connotes that the limitation imposed on the enjoyment of any right must not be arbitrary or of an excessive nature beyond what is required in the interests of the public.

It is here that the concept of proportionality comes into play as a proper criterion to strike the right balance. Therefore, when a law limits a constitutional right, such a limitation is constitutional only if is proportional.

Analysis of reasonableness of the restrictions:

In the present case at hand, the restriction imposed by the government is unreasonable under following grounds,

1. Lack of a legal basis

The government has not published any legal basis on which they imposed these kinds of restrictions. The citizens were not made aware of the nature of the order, issuing body, authority, scope and intent of the order. This means that the order was not substantiated by any legal claim whatsoever. Further, the government failed to provide cogent reasons for the complete blockade.

2. Lack of a legitimate objective

The exact objective of this lockdown is not known to anyone. In the absence of publicly stated legitimate objective the right to freedom of speech and expression of the people of Kashmir en masse, the right to know are violated. Such a complete internet shutdown has created mental and emotional harassment to the people who are away from their families.  Hence this restriction is arbitrary and imposes unreasonably restriction on life and liberty without following any due process of law.

3. Lack of rationality

These restrictions further cause more panic among the people and it paves way for the rumours to spread easily which further aggravates the situation. Empirical studies also demonstrate that network shutdowns are associated with an increase in chaotic forms of violent collective action which require less communication, coordination and preparation than peaceful protests.

4. The restriction imposed is very wide and arbitrary

In Shreya Singhal v. Union of India[9], the Supreme Court has held that,

“Insofar as abridgement and reasonable restrictions are concerned, both the U.S. Supreme Court and this Court have held that a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary.”   

The communication blockade in Kashmir does not qualify as a reasonable restriction under Article 19 (2) because these restrictions were not narrowly tailored to target only the communication platforms or individuals, institutions and organisations who pose a high risk.

5. The restriction was not subjected to temporal limitations

In Virendra v. State of Punjab[10] the court held that “in the absence of time limit for the operation of an order, the order becomes unreasonable.”

These restrictions in Kashmir are in operation in the absence of any legal order available in the public domain which specifies the time limit, which makes the restriction unreasonable. 

6. Availability of less restrictive alternatives

The Court in various judgments held that restriction also includes complete restriction but in such cases, there should be no excessive burden on freedom of speech and the government has to justify why lesser restrictions would be inadequate and lastly complete prohibition is justified is a question of fact which it is to be determined by the court in every case according to the circumstances. To check whether the restrictions are least intrusive is to be determined on balancing and proportionality.

The Supreme Court in the case of Puttuswamy v. Union of India[11] has clarified that,

“A restriction on fundamental rights cannot be considered necessary if there are less restrictive alternatives available.”

In the present case, the restrictions have denied the citizens’ access to essential facilities such as healthcare etc. which cannot be considered the least restrictive alternative.

In Case 21855/65 decided on 28 May 2011, the council of state, which is the highest judicial authority for administrative law in Egypt, opposing the view of the Egyptian government which said that communication shutdown is for the nation’s safety, held that “social justice, economic development, are also a part of national security.”

From the above analysis, it can be said that the suspension of all modes of communication such as the internet, mobile and telecommunication by the government is not proportionate in nature and hence, violative of Article 19 (1) (a).

IV. Restriction under Section 144

Orders passed under Section 144, Cr.P.C. has direct consequences upon the fundamental rights of the public in general. In the present case, there is a conflict between individual rights of free speech and expression and free movement guaranteed by Article 19 of the constitution vis-à-vis the maintenance of public peace and tranquillity. Hence, the ‘proportionality test’ has been used as an interpretational tool to strike the right balance between these conflicting rights.

A government, if it thinks that there is a threat to the law and order situation or any other such requirement, must follow the procedure laid down by law, taking into consideration the rights of the citizens, and pass appropriate need-based orders. Therefore, state’s imposition of Section 144 of CrPC, needs to prove that there existed a circumstance or at least a reasonable apprehension of a circumstance which was likely to create annoyance, obstruction to any person or might cause disturbance to public tranquillity.

In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr[12], the SC highlighted the power under the Section 144 CrPC must be exercised in urgent situations and “the emergency must be sudden and the consequences sufficiently grave”; it should be exercised in a judicial manner which can withstand judicial scrutiny.

In Acharya Jagdishwaranand Avadhuta v. Commr. Of Police, Calcutta[13], the Court reiterated that repetitive powers under Section 144 of CrPC would be an abuse of power.

In Ram Manohar Lohia v. State of Bihar[14], the Court distinguished between ‘law and order’ and ‘public order’, former being the larger circle and comprising latter in its ambit. Therefore, the Court held that mere disturbance in law and order may not necessarily lead to a breach of public order.

However, it has been observed that these safeguards have not been adequate to curb the suppressive tendencies of the state. Hence, there was a dire necessity to add further restrictions on the powers of the State under Section 144 Cr.P.C. So as to prevent abuse of such powers and strike a balance between the fundamental rights of citizens and safeguarding public peace and tranquillity. The power to impose restrictions under Section 144 Cr.P.C., is subject to the principles of ‘proportionality’.[15]

Before issuing an order under Section 144 CrPC, the state must prioritise various factors at stake because such restriction has an immediate impact on the realisation of Fundamental rights. It ought to be noted that a decision which curtails fundamental rights without appropriate justification will be classified as disproportionate.

The preventive/remedial measures under Section 144, CrPC should be based on the type of exigency, the extent of territoriality, nature of restriction and the duration of the same i.e. it has to be proportionate.

Considering the above-mentioned factors it can be said that the imposition of restrictions under Article 144 is clearly excessive than what is required in the interest of the public and thus fails the proportionality test embedded in the ‘reasonable restriction’ under Article 19.

Though there may be a rational connection between the imposition of restrictions under Section 144 and maintenance of public peace and tranquillity, there is a mismatch between the objective sought to be achieved (maintenance of public peace and tranquillity) and the imposition (emergency-like curtailment of fundamental rights). Further, the continuous imposition of restrictions under Section 144 Cr.P.C is an abuse of state power and is unconstitutional.

Freedom of press

 There is no special provision in the fundamental rights on the freedom of press. However, it is enclosed within the freedom of speech and expression.[16] In the case of Channing Arnold v. The Emperor[17], a Privy Council judgement recognised for the first time the freedom of press. Therefore, it is unquestioned that freedom of press is one of the quintessential features of a democracy, which is very well protected by the Constitution. The Supreme Court, on Sakal papers Private Limited v. Union of India[18], stated that

“The right to propagate one’s idea was inherent in the concept of freedom of the speech and expression and that for the purpose of propagating his ideas every citizen had a rights to publish them, to disseminate them and to circulate them.” [19]

The restrictions on movement and communication imposed in Jammu and Kashmir directly curtailed freedom of the press and journalists’ ability to perform their professional duties. Here, the restrictions imposed restricted the freedom of press like the publication of newspapers and the distribution of the same. A responsible government should take proper care of the freedom of press.[20]

Preventive detention and the right to life and personal liberty

As a precautionary measure hundreds of political leaders, including Omar Abdullah and Mehbooba Mufti have been detained.  But detaining such political leaders have created a sense of distrust among the people of Jammu and Kashmir.

Prevention detention should be used most cautiously since it impacts is directly directed to the root fundamental right i.e., Right to life and personal liberty enshrined in Article 21 of the Constitution of India. Preventive detention of citizens could stand the test of constitutionality only if it is exercised during the times of war or emergency situations. The state is given this power to detain its citizens who are suspected to cause a threat to the nation’s security for the sole reason of security of the nation, maintenance of public order.

Preventive detention should be used in circumstances where the authorities are genuinely satisfied that those involved will indulge in activities that will create a disturbance of public order. The government in the present case has detained many political leaders without any just apprehension and for a longer period.

V. Justifications given by the government

The state of Jammu and Kashmir has been long plagued by terrorism. It is a well-accepted view that the modes of communication used by us on a daily basis are also used by terrorist groups to accomplish their motives. Hence the government thought of curtailing ‘terrorism’ by disrupting the ways in which the terror groups organize themselves. It was argued that ‘war on terrorism’ requires such restriction so as to “nip the problem of terrorism in the bud.”

Keeping the above view in mind the government gave the following reasons for the complete shutdown on the internet services:

1. In order to prevent the ease of movement and mobilisation of the terrorist groups against our nation
2. In order to slow down the spreading of fake news through social media
3. In order to secure peace and harmony in the region; in other words in order to avoid open disputes.

The internet shutdown prevents the systematic works of those groups which work to create unrest and protest in Kashmir. The possibility that the local political leaders could use this situation to gather support against the abrogation of Article 370 and Article 35 A, led the government to keep such leaders under house arrest so that it stops the flow of thoughts from the leader to their party members. It also prevented the local militant outfits from creating and circulating fake images, propaganda videos. Further, the internet shutdown prohibited their connection with their Pakistani handlers who are present across the border.

However, these restrictions have an adverse impact on the people of Jammu and Kashmir. Important points from the Judgement of Anuradha Bhasin v. Union of India:

The court has held that, while ensuring peace and tranquillity, there should not be an excessive burden on freedom of speech and expression.

1. The freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is protected by Article 19(1)(a) and Article 19(1)(g) of the constitution and that if they are restricted, it should be done according to the proportionality test.
2. The court insisted on banning of selective internet sites as opposed to complete shutdown of internet services. Further held that though the government can rightfully suspend internet access, it needs to do it on a temporary basis; which it failed to do in this case. Hence, the government was asked to review its suspension orders and lift those which were not on a temporary basis.
3. It directed the state to publish the orders since the orders affect the Fundamental rights of the people. The people have the right to know that on which grounds such impositions and bans are applied.
4. It also said that the test of Proportionality should be satisfied so that there isn’t any violation of natural justice.
5. It also held that allowing complete prohibition on freedom of speech and expression would lead to a state where it can be misused by the government to suppress any voice which reasonably questions the actions of the government.

Conclusion

David Kaye, the U.N. Special Rapporteur on Freedom of Opinion and Expression, had called the shutdown “unprecedented” and said that the communication blackout following the abrogation of Article 370 was a ‘disproportionate’ interference with the rights of Kashmiris. 

There have also been reports of hundreds of detentions of political activists, human rights defenders, community leaders, and others, including children between 9 and 11 years of age, under the draconian Jammu and Kashmir Public Safety Act (PSA) of 1978, which permits preventive detention without charge. The communication blockade has also impeded access to legal aid.

This prolonged restriction on communication, coupled with arbitrary mass detentions, denial of freedom of expression and access to information, is unnecessary and disproportionate to the situation and will further lead to a deterioration of human rights and basic freedoms.

We can say that if the balance between the nation’s security and individuals rights are not met with then it leads to a disaster which is evident in this case. As already quoted above, “social justice, economic development, are also a part of national security” which the government is bound to protect.

The Indian government has to try to easily restore peace and tranquillity in the state of Jammu and Kashmir by slowly removing the brute restriction imposed on the people.

REFERENCES                                    

1. Rogers, Stephen (2016) “Striking a balance between Fundamental Rights and National Security: The Frailty of First Amendment Protections in the Face of Fear and the “War on Terror”,” Liberated Arts: a journal for undergraduate research: Vol. 2 : Iss. 1 , Article 7.
2. Arun Pratap “Freedom of Expression & Sovereignty and Security of Nation (State) (Special Reference of Issues Related to Jawaharlal Lal University Delhi).” IOSR Journal of Humanities And Social Science (IOSR-JHSS). 23 no. 1, 2018, pp. 31-36.
3. Mathok, Balraj (1973). “Murder of Democracy”, New Delhi: Chand & co. (Pvt.) LTD.

[1] Rogers, Stephen (2016) “Striking a balance between Fundamental Rights and National Security: The Frailty of First Amendment Protections in the Face of Fear and the “War on Terror”,” Liberated Arts: a journal for undergraduate research: Vol. 2: Iss. 1, Article 7.

[2] Anuradha Bhasin vs. Union of India, 2019 SCC OnLine SC 1725

[3] (1994) 6 SCC 282.

[4] 1978 AIR 597

[5] (2017) 10 SCC 1

[6] (2009) 7 SCC 751

[7] (2017) 10 SCC 1

[8] Anuradha Bhasin vs. Union of India, 2019 SCC OnLine SC 1725

[9] (2015) 5 SCC 1

[10] (1958) SCR 308

[11] (2019) 1 SCC 1

[12] 1971 AIR 2486

[13] 1984 AIR 512

[14] AIR 1966 SC 740

[15] Anuradha Bhasin vs. Union of India, 2019 SCC OnLine SC 1725

[16] Arun Pratap “Freedom of Expression & Sovereignty And Security of Nation (State) (Special Reference of Issues Related to Jawaharlal Lal University Delhi).” IOSR Journal Of Humanities And Social Science (IOSR-JHSS). vol. 23 no. 1, 2018, pp. 31-36.

[17] (1914) 16 Bom LR 544.

[18] Mathok, Balraj (1973). Murder of Democracy, New Delhi: S. Chand & co. (Pvt.) LTD.

[20] Anuradha Bhasin v. Union of India, 2019 SCC OnLine SC 1725.

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