SC quoted jurist Ronald Dworkin in passing. Kashmir 4G order shows it must read him in full

Kashmiri journalists protest in Srinagar against the internet shutdown | Photo: File photo. by special arrangement

Having appeared in court for private schools of Kashmir in the 4G matter, I have reflected upon what residents of the Union Territory might have made of the order recently passed by the Supreme Court in the case. A special committee has been appointed by the Supreme Court comprising the home and telecom secretaries of India as well as the chief secretary of Jammu and Kashmir to consider the material submitted by the petitioners.

The committee will take a call on whether certain parts of J&K could be excluded from the restriction and whether 3G or 4G could be provided for a short while. Given the ongoing coronavirus crisis, the Supreme Court did not feel the need to delve further into the merits of its order. However, some interesting observations were made.

It is important to note that the internet issue arose in Anuradha Bhasin vs Union of India not because of terrorism per se but because of the public reaction anticipated in the aftermath of the dilution of Article 370, which stripped J&K of its special status. However, the matter seems to have proceeded essentially on terrorism and its consequences. The public reaction to the Article 370 move was only an additional feature.

The Narendra Modi government has repeatedly claimed that the situation in Kashmir had substantially normalised and the Supreme Court noted that internet services were steadily reintroduced and enhanced. Where, then, did it arise for the government to submit a note (after judgment was reserved) on incidents of terrorist violence, a couple of days before the hearing?

Reducing internet speed to 2G was supposedly done to counter terrorism and yet terrorism continued unabated. It goes without saying that any infrastructure or instrument of communication and public utility can be used by the terrorists but does that mean we should shut everything down? We build roads for the good of society but criminals use them as well. We place check posts and barricades but do not dig up the road. Also, presenting check posts as a measure of vigilance cannot be the end of argument; the government must show how they prevent crime directly or indirectly.

When we deny the criminal a fair trial because we are convinced that he has hurt us, the right not to be condemned without a fair trial is meaningless. On its own argument, the Modi government was unable to prove that 2G internet deprives the terrorists what 4G facilitates. There was neither data nor a plausible explanation on the critical difference in the circumstances between 2G and 4G, except the generally available view that terrorists use the internet for propaganda, indoctrination, and messaging for their illegal activities and that, as the Supreme Court repeatedly underscored, 4G is faster than 2G.

Protection can be diminished

It must be recalled that in Anuradha Bhasin, the analysis began with the primacy of fundamental rights and went on to explain the ‘reasonable restrictions’ test in terms of competing rights of interconnectivity of different rights and the recently pronounced thesis of proportionality. It is another matter that the Supreme Court has conducted this exercise throughout by another name. In Anuradha Bhasin, it was sought to be explained through various propositions that scholars around the world have suggested and Indian judiciary has examined in earlier judgments like Modern Dental College vs State of Madhya Pradesh.

“It is now almost accepted that there are no absolute constitutional rights. [Though, debate on this vexed issue still continues and some constitutional experts claim that there are certain rights, albeit very few, which can still be treated as “absolute”. Examples given are: (a) Right to human dignity which is inviolable;

(b) Right not to be subjected to torture or to inhuman or degrading treatment or punishment. Even in respect of such rights, there is a thinking that in larger public interest, the extent of their protection can be diminished. However, so far such attempts of the States have been thwarted by the judiciary.] …

In fact, such a provision in Article 19 itself on the one hand guarantees some certain freedoms in clause (1) of Article 19 and at the same time empowers the State to impose reasonable restrictions on those freedoms in public interest. This notion accepts the modern constitutional theory that the constitutional rights are related. This relativity means that a constitutional licence to limit those rights is granted where such a limitation will be justified to protect public interest or the rights of others. This phenomenon–of both the right and its limitation in the Constitution– exemplifies the inherent tension between democracy’s two fundamental elements…”

The bogey of ‘national security’

The above exposition of law was reemphasised in K.S. Puttaswamy vs Union of India, the Aadhaar ive-judge bench judgment.

The problem with the current approach of the Supreme Court, though practical, is that it throws up propositions like the one above — that even in the matter of torture and human dignity, protection can be diminished in the public interest. Notably, it is not articulated as the right of one against the right of another, but as the right of an individual against the right of the society.

The jurisprudential fit for the Supreme Court’s 4G order was obviously set in the earlier judgment of Anuradha Bhasin and and so it needs to be analysed. The national security versus human rights equation, seen in the perspective that we have become accustomed to, leaves very little scope against the predictable outcome. The Supreme Court has built an impressive edifice of rights over the years and continues to build further as we saw in the right to privacy and decriminalisation of homosexuality in the Article 377 judgments.

But a whisper of national security persuades the judges to promptly pull down the shutters on rights. Given the broad consensus in India on national security (currently raised to the level of a frenzy), it is understandable that judges do not wish to be alienated. But then what good are rights in good times alone and in matters where we agree? Surely, rights have a meaning if they hold good in bad times and when they come to the aid of unpopular claims of justice?

Reading Ronald Dworkin

The remarkable work of American jurist and philosopher Ronald Dworkin, who was quoted in passing in Anuradha Bhasin but passed over for the sake of more comforting propositions of other authors, should indeed give us cause for reflection if rights are to be protected in India. Justice N.V. Ramana read Dworkin to insist on rules that have an all or nothing impact on facts unlike other authors who propose principles that are adjustable. But that, sadly, is a complete mistaken reading of Dworkin if one goes to Hard Cases in Taking Rights Seriously. In a more recent book, Is Democracy Possible Here? (2006), Ronald Dworkin specifically addressed the terrorism-versus-rights contest:

“Remember our premises. In chapter 1 I said that we damage ourselves, not just our victim, when we ignore his humanity, because in denigrating his intrinsic value we denigrate our own. We compromise our dignity and our self-respect. So we must put the hurdle of emergency very high indeed. We must take care not to define “emergency” as simply “great danger” or to suppose that any act that improves our own security, no matter how margin- ally, is for that reason justified. We must hold to a very different virtue: the old-fashioned virtue of courage. Sacrificing self-respect in the face of danger is a particularly shameful form of cowardice. We show courage in our domestic criminal law and practice: we increase the statistical risk that each of us will suffer from violent crime when we forbid preventive detention and insist on fair trials for everyone accused of crime. We must show parallel courage when the danger comes from abroad because our dignity is at stake in the same way.

Now notice the crucial dimensions of the stock example about the ticking nuclear bomb hidden in Manhattan. The danger is both horrific and certain; we know that our victim is responsible for that danger, and we assume that if we torture him and he yields, we can remove the danger. None of that is true about our policy of imprisonment without charge or trial in Guantánamo and our other bases around the world. We are in danger of an- other devastating attack, to be sure. But there is no reason yet to think that the danger approaches certainty or that our violations of human rights are well calculated to end or even significantly to reduce that danger. We gathered our prisoners indiscriminately. We erred on the side of inclusion; anyone we thought might be dangerous or might have useful information was swept up. We have already released, under diplomatic and judicial pressure, several of those we held in Guantánamo for many months. In each case, we stated that we are now satisfied that it is not necessary to hold the prisoners. Of course the public does not know what information the interrogation has so far secured. But the criticism of our detention policies has been so intense, at home as well as in other countries, that I suspect the government would have made more precise claims about the value of that information if it could have done so.”

Illusory rights

Dworkin distills this thought into two words that the Supreme Court might not remotely have thought to be relevant to the debate — courage and honour. But in fairness, it must be admitted that the Supreme Court was constricted by the conventional approach of looking at fundamental rights and their reasonable restrictions with the latest proportionality thesis as not ‘being absolute’. This is attributed to the negative nature of fundamental rights (except Article 21A). The trouble with that approach is that conditioned with the ‘individual versus society’ idea, it makes the very concept of rights illusory. In Anuradha Bhasin, the Supreme Court surprisingly envisages the right against torture as not absolute. In other words, rights are susceptible to a cost-benefit analysis, something Dworkin says is completely unacceptable:

“Simon Jenkins, in the Sunday Times, recently declared his enthusiasm for the 18th-century philosopher Jeremy Bentham who said that all that matters is the greatest happiness of the greatest number, and that the whole idea of human rights is therefore “nonsense upon stilts”. But Europe, led by Britain, rejected Bentham’s utilitarianism after the second world war when it established the European human rights convention. The 20th-century tyrannies have taught us that protecting the dignity of human beings, one by one, is worth the increased discomfort and risk that respecting human rights may cost the public at large. The Human Rights Act, which makes that convention part of Britain’s own law, was one of the great achievements of this government. It is sad that Blair’s political weakness has tempted him to rubbish ideals of which he and the country should be proud.”

No balancing rights against security 

Hoping to get the right result of every cost-benefit analysis for rights people have, as in the case of general policy decisions, will, in the words of the Supreme Court, turn rights into a ‘rope of sand’. Dworkin’s last word on that should be a beacon to us all:

“We are in great danger of falling into the trap I just warned against: thinking that anything that improves America’s security, however marginally or speculatively, is wise policy. That makes a terrified prudence the only virtue we recognize; it sacrifices courage and dignity to a mean and cowardly prejudice that our own security is the only thing that matters. We do not make that mistake in our own lives or our own domestic law, and it is not plain that the danger from terrorism is greater, all in all, than the dangers from drugs, serial killers, and other crimes. But the threat to our dignity is certainly greater now, and we must stand together to defeat that greater danger. The metaphor of balancing rights against security is, as I have said, very misleading. A different metaphor would be much more appropriate: we must balance our security against our honour. Are we now so frightened that honour means nothing?”

Rights in bad times, be it the Kashmir unrest and militancy or the dreaded Covid-19, will be the test of faith in equal concern and respect for each other, or in other words, commitment to dignity. Extreme exigencies and imminent and grave threat obviously require some qualification or special regulation, but without undermining dignity.

Salman Khurshid is a politician, senior advocate, author and law teacher. Views are personal.