While the State responded to the protests against the Citizenship Amendment Act (CAA) by shutting down the internet at will, the Gauhati High Court upheld the fundamental right of the citizen to internet services by ordering the Assam government to lift the internet ban. The ban on internet services in Assam and other states has become the new norm in the State’s attempt to muzzle dissent.

Couched in terms of maintaining public order, this move sought to prevent the protests in various parts of the country from gaining attention in the media and public debate. Before the judgement, the infringement of fundamental rights loomed large, with media reporting on the issue hampered.

The CAA aims to expedite the process of giving citizenship to refugees fleeing from religious persecution in Pakistan, Bangladesh and Afghanistan, but in so doing, explicitly excludes Muslims from being able to apply for such citizenship. The Act names only Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from the three countries – the religious minorities in the three Islamic nations  -- as being eligible. It has led to large-scale protests by citizens cutting across religious lines as it is seen to violate the constitutional guarantee of secularism and equal rights before the law to all within the territory of India.  

The implications of CAA must be understood in the broader framework of the proposed National Register of Citizens (NRC). Recently, the NRC was completed under the mandate of the Supreme Court in Assam, where it was declared that approximately 19 lakh people of the state’s 3.29 crore population were excluded from the final list and that these 19 lakh people would be deemed illegal immigrants. A majority of them are said to be Hindus. Though the NRC was previously hailed as pathbreaking by the government, the BJP began seeing a problem with the exercise when such a large number of Hindus were excluded from the final list of citizens.

Through the CAA, it is expected that many Bengal Hindus in Assam would be protected. But the same protection will not be extended to Muslims who did not find themselves on the final list. Thus, there is clear discrimination. This situation led to unrest in the North-East and spread to the rest of the country.

To prevent the discontent from spreading, the government imposed internet ban, citing reasons of public order and inputs from the Intelligence Bureau.

It is pertinent to note that freedom of speech and expression in terms of internet access does not figure in the Constitution. This is because the internet as technology did not exist at the time the Constitution was framed. The judiciary, however, has done a laudable job of keeping up with the times and realising the essence of this right as an intrinsic part in today’s society.

In another recent decision, the Kerala High Court had declared that the right to internet access forms a part of the right to privacy and is a fundamental right guaranteed under Article 21 of the Constitution. It also forms part of the right guaranteed under Article 19 of speech and expression and the right to know.

Restrictions on the exercise of this right can be imposed under Clause 2 of Article 19, which provides ‘public order’ as a ground for the said restriction. But it must be borne in mind that maintaining ‘law and order’ is not the same as ‘public order’. There may be disruption of peace in some pockets of an area but that does not amount to a disturbance in public order, rather it may be a situation of law and order.

If the public at large is disturbed, that can be a public order issue. But all instances of breach of the peace cannot be a problem of public order. Further, the steps taken to restore normalcy must be proportional to the disturbance in the area.

In the case of Assam, for instance, it was an entirely different story. The curfew in the state was relaxed in a phased manner. It was inexplicable why the internet should not have been available when there was no curfew in the region.

Further, it was pointed out that all business establishments in the region relied upon the internet to carry out their businesses. Further, no credit or debit cards could be used in the region. The High Court rightly held that bringing down internet services in the region had brought the state to a complete halt.

It is pertinent to recall the observation of Justice DY Chandrachud in this regard, “Dissent is the safety valve of democracy.” The government must realise that it holds all powers in public trust and must use it in a manner beneficial to the public at large, not to the detriment of the very interest it is meant to protect.

The government must take all possible means to restore peace before taking such an extreme measure. A blanket move of any kind, especially banning essential utilities, must be scorned at in a democracy which is formed of the people and meant to serve the people.

(The writer is a student at Keshav Mahavidyalaya, Delhi University)