This is a matter of concern because the current policies of Government of India have pulverised the polity in Jammu and Kashmir and the recovery of a healthy democracy appears to have a remote chance here. That this should happen in the world’s largest democracy with institutions of governance completely failing the people of J&K is utterly shameful.
A petition was recently filed in the Supreme Court challenging the draconian curbs imposed in Kashmir since August 2019.
Among other things, the petitioners pleaded for the restoration of internet services in the valley. They argued that the continued suspension of internet services even during the COVID pandemic is affecting people’s rights to health, education, occupation, speech, and access to justice. The Apex court while concurring with the petitioners that the incessant lockdown for the past ten months were militating against the previously laid down principles refused to direct the government for restoring 4G internet connectivity citing security reasons.
In that light, we shall analyze the justifiability of the Kashmir Lockdown using the test of reasonableness and the proportionality standard often used by the Supreme Court in determining the reasonability of restrictions imposed on Fundamental Rights especially to restrictions on Freedoms, part of Article 19 of the Indian Constitution.
In Kashmir, the government has imposed massive curbs on media and the internet for the last ten months without any reasoned order. Even when asked by the Supreme Court, the government miserably failed to produce any order, affidavit or replies in matters relating to this lockdown and curtailment of civil liberties.
Instead of placing sufficient material to justify its actions in Kashmir it only sought adjournments. Moreover, when seen in the light of the surrounding circumstances and the inherently anti-Muslim ideological foundations of the ruling dispensation, it becomes clear the restrictions in Kashmir are extremely arbitrary, excessive and beyond the requirements of the situation.
It also lacks good faith and fails to take into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public.
Whereas the test of reasonableness lays down no clear formula but stresses that the restrictions must not be arbitrary or excessive in nature so as to go beyond the requirement of the interest of the general public, Proportionality Standard lays down an elaborate 4-prong formula to determine the reasonableness of an action. First, that a measure restricting a right must have a legitimate goal; second, that the concerned restriction must be a suitable means of furthering this goal; third, that there must not be any less restrictive but equally effective alternative to achieve that goal; fourth, that the measure must not have a disproportionate impact on the rights holder.
The legitimate aim here concerns with aims that correspond to the Constitutional values and goals and which the Constitution does not prohibit. When it comes to Kashmir, there is a great deal of opaqueness on the motive behind the restrictions as the government has not been very forthcoming in explaining the rationale for the incessant restrictions except that the curbs have been imposed as a precautionary measure to maintain law and order.
It should be noted however that under the garb of law and order, Kashmiris have been denied all their civil, political and Constitutional rights to voice their concerns and express their opinions over political decisions concerning them taken without their consent.
We cannot use terrorism as an excuse to shut down everything. Even if the government feels that there would be unrest, it should have allowed peaceful protests to be carried out. This whole exercise smacks of tyranny in a dictatorship and is not a democratic exercise and hence it can never be a legitimate aim from the viewpoint of a Constitution that claims justice, liberty, equality and fraternity as its guiding principles.
Let us examine the suitability of the means to achieve the given ends.
Assuming that the aim in the present case is the maintenance of law and order, the government in order to further this aim has sent thousands of additional troops to the disputed region, imposed a crippling curfew, shut down telecommunications and internet, and arrested thousands of civilians including mainstream political leaders.
In such a case, this brazen exercise can never be called a suitable means, especially in a democratic welfare state that boasts about the legacy of Gautam Buddha and Mahatma Gandhi. Such means are used by coward dictatorial regimes to curb dissent and uprisings.
What kind of law and order can be achieved by shutting down everything and destroying the whole economy?
Such a coercive means is not only not suitable but also unsustainable and unmaintainable in all circumstances.
Could there have been less restrictive but equally effective alternative? Complete shutdown and total lockdown is certainly the most extreme method to maintain law and order. It is also the least effective way as the whole functioning of society comes to a sudden halt.
The purpose of law and order is to ensure smooth interaction between all organs and institutions of a society in order to facilitate its all-around progress and development. What is the point of achieving such a law and order where the society becomes a living dead which cannot freely communicate, interact and express itself?
Experiences show that coercive methods have rarely been successful in achieving desired goals. The lasting peace that can be achieved by dialogue and negotiations with concerned stakeholders cannot be achieved by muzzling dissent through the fear of the bayonet. The complete absence of dialogue, what to talk of with separatist, militant or civil society organisations, even with mainstream political parties with whom Bhartiya Janata Party has had alliances, has been the hallmark of the current regime led by it in New Delhi.
While the government may boast that it has achieved the law and order through these curbs but it cannot deny the disproportionate impacts on the rights holder, the residents of Kashmir.
The lockdown has certainly not come cheap. According to the Kashmir Chamber of Commerce and Industry estimates the shutdown has already cost the region more than $1.4bn (£1.13bn), and thousands of jobs have been lost. The State interest appears to have taken overwhelming precedence over the individual and societal interests of Kashmir.
Due to the lockdown, a large number of Kashmiris have been robbed of not only their basic civil and political rights and liberties but also their human rights. Hundreds of people have been arrested and held without trial and moved to jails far from home. Internet and media shutdown amounts to disproportionate restrictions on free speech. In the words of an eminent lawyer, never before the lives of 70 lakhs people have been paralysed like this.
The excessive restrictions imposed by Government on civil and political liberties in Kashmir even during the COVID pandemic neither pass the muster of reasonableness nor of proportionality as laid down by the Indian Supreme Court in various cases.
They are not a reasonable restriction within the meaning of Article 19 as they are arbitrary and excessive in nature and totally go beyond the requirement of the interest of the general public which has been suffering immensely for the last ten months. They fail the proportionality inquiry as the measures at hand do not correspond to the greater Constitutional values and goals that claim justice, liberty, equality and fraternity as their guiding principles.
By Atul and Sandeep Pandey
Note: Atul is a 4th year LLB student at National Law University, Delhi and Sandeep Pandey is a visiting faculty there for this semester.