167 days.

That’s how long Prime Minister Narendra Modi and home minister Amit Shah have denied the people of Kashmir the right to access to the internet.

Under pressure from the Supreme Court, they are now pretending to restore access but have added insult to injury by deciding that Kashmiris will only be allowed to open 153 specially screened websites. Everything else will be strictly firewalled and kept off limits.

This firewall is an augury of what the future holds for us all if the Modi-Shah approach to fundamental rights is allowed to prevail. For the first time since the Emergency, the government is arrogating to itself the right to tell citizens what they can and cannot read. Indeed, Modi has gone a step beyond Indira Gandhi. While she had her censors black out select news items and opinions, Our Dear Leader on the other hand has decided that digital news of any kind is to be blacked out from Kashmir.

Needless to say, this is a slap in the face of the apex court, which ruled last week – in a judgment that should have come much, much earlier – that the government’s sweeping and open-ended internet ban in Jammu and Kashmir is not acceptable. Specifically, it said that “freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g)” and that any internet ban the government imposes “should be in consonance with” the reasonable and proportionate restrictions envisaged by the constitution.

Glaring loophole

Having made this important point, however, the court sadly stopped short of ordering the government to restore to the people of Kashmir their freedom to communicate and read via the internet. Instead, it directed the government to “review” its current order within a week.

Predictably, the government quickly conducted a so-called review and concluded, equally predictably, that the ban would continue!

On January 18, the government issued a new order relaxing the ban a teeny-weeny bit by allowing people in two districts of the Valley to access a limited number of “whitelisted” sites on post-paid mobile connections at 2G speed. Naturally, Modi’s approved reading list includes no news sites or social media platforms of any kind.

At a time when the judiciary has been reluctant to check the abuse of power by the government, the Supreme Court’s judgment on the impermissibility of an indefinite internet ban was a welcome first step. But the ease with which the government simply brushed aside the spirit of the court’s concerns tells us that India’s judges will have to be blunter and bolder if they are to play their constitutionally mandated role of upholding the rights of the people.

Internet ban now in sixth month

Anticipating public opposition to its scrapping Article 370, the Modi government issued an as yet unpublished order declaring a complete communications blockade on the erstwhile state of Jammu and Kashmir with effect from the night of August 4, 2019.

The government provided no reasons for this in writing, yet internet access was snapped, including leased lines and all broadband connections; all mobile telephony – voice, messaging and data – was blocked; and even landlines were switched off.

This kind of a blockade has never happened before – not in Kashmir or any other part of India. During the Emergency, Indira Gandhi never banned private conversations between individuals over landline telephones.

It took five weeks for all landline connections to be restored. Another three months or so passed before the Centre restored postpaid voice service on mobiles, in the middle of October 2019. Simple SMSs came back online earlier this month for postpaid connections but not prepaid mobile connections. That ban was mercifully lifted on January 18, 2020, and 2G data services for access to 153 approved websites on post-paid connections also allowed in two districts, Kupwara and Bandipora. Of course, broadband internet remains inaccessible across the Kashmir Valley except for a small relaxation – announced on January 18 – providing access to companies engaged in software services.

This means that even six months after Modi supposedly completed the integration of Jammu and Kashmir with the rest of India, the vast majority of students in the Valley still cannot use the internet to study or to apply for courses and jobs. Most farmers, craftspeople and businesspeople cannot use the internet for basic commercial needs. Doctors cannot use the internet properly to better diagnose their patients. Families and friends can’t use the internet to communicate with one another – a fate Information and Broadcasting minister Prakash Javadekar had once described as the worst form of punishment you could subject a human being to. I urge you to think of all the reasons you’ve turned to the internet in the past 167 days and then reflect on what the blockade has meant for ordinary Kashmiris.

Ridiculous reasoning

The communication ban was raised in the Supreme Court in August last year but it took the court nearly five months to rule that an indefinite ban on accessing the internet was not permissible. It is shocking that during the course of the hearings, the government at first refused to even share with the court its written orders suspending internet services. When it finally agreed to do so, the court was constrained to record that it had not been provided with the full set of orders.

The issue of written orders is important because these orders can become the basis of a judicial challenge to the government’s decisions. So what better way to avoid someone questioning your arbitrary and draconian policy in court than to simply keep your orders hidden! We have to be grateful to the Supreme Court for calling this bluff last week and insisting that the government publish any order restricting access to the internet.

So this week, after being compelled by the court, the government did finally publish its order continuing with its internet ban for Kashmir but its reasoning and logic is so ridiculous that I’m hardly surprised they wanted to keep it hidden.

Let me quote the opening passage of the order, dated January 14, 2020: “Whereas the police authorities have brought to notice material relating to the terror modules operating in the UT of J&K, including handlers from across the border, and activities of separatists/anti-national elements within who are attempting to aid and incite people by transmission of fake news and targeted messages through use of internet to propagate terrorism, indulge in rumour-mongering, support fallacious proxy wars, spread propaganda/ideologies, and cause disaffection and discontent…”, hence the internet has to be banned in the Valley.

Now this order was issued by the Jammu and Kashmir Home Department, but don’t be fooled for even a second: the J&K administration answers to the Union home ministry and its supremo, Amit Shah, so please understand, this is his policy and his reasoning for why the Kashmiri people should continue to be denied access to the internet.

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Of course, Shah is a considerate man, so people in the Valley are welcome to use the internet in supervised sessions at government-run internet kiosks, but I’d like him to try that as an experiment in Ahmedabad or Surat: he should switch off the internet and compel anyone who wants to use it to queue up at a government office. And then do that for six months! And after which he allows them to access only 153 whitelisted sites.

The government says we need to ban Kashmiris from using the internet because it’s being used to spread fake news and rumours. Really? This from a government run by a party whose ministers and leaders have used the internet to spread not just rumours and fake news but also propaganda inciting hatred on the basis of religion.

Access, North Korean style

As everyone feared, whatever restoration of the internet has come allows access only for so-called whitelisted sites. We went through the list of 153 sites – which is the sum total of what Modi and Shah will allow Kashmiris to access – and these are mainly email, banking and travel booking sites, government sites, entertainment sites like TataSky, a few science and technical sites for scholars, and that’s it. No YouTube. No news. No social media. I’m reminded of the radio sets the North Korean government apparently provides its citizens that come preset to Radio Pyongyang and no other station. Apparently, our Dear Leaders see great value in the North Korean model of thought control.

Notwithstanding its unwillingness to provide a clear and immediate remedy to the suffering people of Kashmir and the loopholes it came with, the Supreme Court’s judgment on the Kashmir lockdown is still important for four reasons – though I doubt the government is going to take note.

First, with the internet being banned up and down the country at the drop of a hat, this is the first time the apex court has tried to lay down some rules of the road. Bans have to be reasonable and proportionate. The court should have been clearer and firmer but I suppose the times are such that we need to grateful for small mercies.

Second, the judgment also considered the issue of Section 144 – the law that governments use to impose restrictions on the movement of ordinary citizens – and made some important observations about its abuse.

Third, the court said any shutdown order has to be published.

Fourth, shutdowns cannot be indefinite.

In holding access to communication over the internet to be a fundamental right, the court has laid down a plausible test for any official attempt to limit access: it must meet the constitutional standard of a “reasonable restriction”. And by no yardstick can the six-month ban on broadband and mobile internet services in Kashmir be called a reasonable restriction. The ban represents a totally disproportionate response to any law and order threat.

The claim that the ban on the medium was required to curb the spread of rumours and fake news could easily apply to any medium of communication, including private conversations, which authoritarian states also tend to clamp down on, and is totally ridiculous. If allowed to stand as a reason for restricting the internet in Kashmir, no part of India should consider itself safe from an eventual assault on the right to free speech.

What the government really fears

The real reason the government does not want to restore full access to the internet in the Valley – access of the kind all Indians take for granted – is not its fear of terrorism but civil disobedience.

Modi and Shah do not want to allow the people of Kashmir to freely communicate with each other and strategise ways to oppose what the government has done and is doing. That is, why there is a complete ban on digital news, social media and any kind of peer-to-peer communication? The government is well-equipped to deal with the threat of terrorism. The government also knows how to handle stone-pelting and other forms of violent protest. But what it does not want to confront is a Shaheen Bagh or a Tahrir Square in Srinagar.

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All its restrictions on the people in the Valley – the internet ban, the arbitrary use of Section 144, the arrest of civil society activists, lawyers, trade unionists and political leaders – is intended to create room for a new cadre of lackeys and ensure the political initiative does not pass into the hands of ordinary Kashmiri women and men. That is why political leaders who have been illegally arrested are being released on the condition that they sign a bond pledging not to say anything about the current situation in Kashmir. That is why even government departments with an internet connection have to sign a bond guaranteeing that their connection will not be used for any kind of social media communication.

We see the same government intolerance towards peaceful gatherings across India. It is so much easier to wield lathis and open fire on marching protestors but what do you do when they adopt Gandhian methods of satyagraha? My hunch is that the internet ban in Kashmir is intended to postpone and eventually prevent a Shaheen Bagh in Srinagar’s Lal Chowk. Everything else the government says – about terrorism, handlers across the border, anti-national elements and fake news – is just a smokescreen.