Public Administration Mains 2020 : Model Question and Answer - 120
(Public Administration Paper II / Chapter: Union Government and Administration)
Current Question : Recent Supreme Court ruling on Kashmir internet shutdown limits arbitrariness of executive power. Comment. (15 Marks / 250 words)
Model Answer:
The SC’s declaration that the freedom of speech and expression, as well as the right to trade over the internet, has constitutional protection under Article 19 (1) is the first time that the Court has made a positive assertion regarding the same.
The Court has therefore made any curbs on the internet subject to the stringent requirements of restrictions under Article 19 (2). This brings in the proportionality analysis, which the Court interprets to include the requirement of allowing only the least restrictive measure. With respect to the internet, the Court specifies that the blanket suspension or banning of the internet is a “drastic measure” that cannot be usually resorted to by the state.
The orders passed by the state (except for a certain “sample” order) were not even placed on record. However, the SC, by both requiring the state to proactively place orders before a court in writ proceedings, as well as requiring the publication of orders under the Internet Rules — as well as those passed under Section 144, CrPC — has taken away this mechanism of the state to thwart or abridge rights.
The SC has effectively ruled that the Kashmir internet orders be revoked, seeing as it is unlikely that the orders passed by the state authorities could have been in compliance with the ruling. If they do not revoke the orders, they would have to publish them, and prove that the orders were in compliance with the law laid down by the SC. Otherwise, the authorities face the risk of being in contempt of the present SC judgment: A decision which might not play out very well, either legally or politically, both in India and internationally. (Total Words- 279)
(Linkages : Supreme Court and Executive Government, Supreme Court and Article 19 (1), State Authority and Civil Liberty )