Jammu & Kashmir Internet Restrictions Cases : A Missed Opportunity to Redefine Fundamental Rights in the Digital Age

In Anuradha Bhasin v. Union of India, the Supreme Court was called upon to review the constitutionality of the communication shutdown imposed in Jammu & Kashmir in August 2019. The Court’s decision endorsed human rights principles of necessity and proportionality and recognized a derivative fundamental right to internet access. Yet, this principled adjudication failed to provide any immediate relief to the 12.5 million people of Jammu & Kashmir reeling under the longest internet shutdown imposed in any democracy. Our analysis considers why and how this occurred and how the absence of relief necessitated further litigation. Subsequently in Foundation for Media Professionals v. U.T. of Jammu & Kashmir, the Court once again declined to provide relief while denial of 4G mobile internet continued in Jammu & Kashmir during the COVID-19 pandemic.We first examine how the Court avoided any form of judicial review despite endorsing the rigorous and evidence-based proportionality standard in both judgements. We situate both judgements within a line of cases where the Court has given primacy to the ‘national security’ justification offered by the State. When national security grounds are invoked by the State, the Court adopts at least a facial, procedural review which is absent in these cases. This is important because the Court’s recognition of a derivative fundamental right to internet access is yet to be actualized through the grant of relief. We then focus on negative and positive conceptions of a derivative fundamental right to internet access to criticize the Court’s non-enforcement of the former and its cursory dismissal of the latter. Finally, we conclude that the Court’s directions in Anuradha Bhasin and Foundation for Media Professionals have failed to act as a meaningful check on the executive branch but provide precedential value for future litigation