CLAT Legal Reasoning: Internet and National Security

To begin with, this move to restrict 4G Internet in the region was part of an array of measures limiting communications and movement. These moves were made ostensibly out of a concern for national security, with the aim of thwarting terrorism. The blockade though, imposed as it was indiscriminately on the whole region, was challenged in the Supreme Court, in Anuradha Bhasin v. Union of India (2020).

The petitioner there made two primary arguments. First, she pointed out that the government had refused to make public its orders blocking the Internet. This, she said, violated a basic tenet of the rule of law: that people have a right to know why their freedoms have been constrained. Second — and more substantively — she argued that empirical evidence demonstrated that there was no link between shutting down the Internet and the state’s objective of protecting security. Indeed, available materials pointed the other way: that the Internet was a valuable tool that could be used to counter the spread of incendiary rumours and fake news. Moreover, the government had at its disposal less restrictive options, such as the blacklisting of specific websites and targeted surveillance measures. It is unclear if these alternatives were even considered. Thus, the petitioner claimed that there was no justification for a blanket Internet shutdown that impacted a territory of eight million people, a vast majority of whom had nothing to do with terrorism.

CLAT Legal Reasoning: Individual Rights and Communities

Within the Constitution of India, there are two impulses that may, at times, come into conflict with one another. The first impulse recognises that India is a pluralist and diverse nation, where groups and communities — whether religious or cultural — have always played an important role in society. Following up on this impulse, the Constitution recognises both the freedom of religion as an individual right (Article 25), as well as the right of religious denominations to manage their own affairs in matters of religion (Article 26). The second impulse, on the other hand, recognises that while community can be a source of solidarity at the best of times, it can also be a terrain of oppression and exclusion. The Constitution, therefore, expressly provides for the possibility that there may be times when members of religious and cultural communities may need to be protected from authoritarian and oppressive social practices. Thus, both Articles 25 and 26 are subject to public order, morality, and health; and further, Article 25 is also subject to other fundamental rights guaranteed by the Constitution, and to the state’s power to bring in social reform laws.

How then do we strike a balance between respecting the autonomy of cultural and religious communities and also ensuring that individual rights are not entirely sacrificed at the altar of the community? Over the years, the Supreme Court has attempted to do so by carving out a jurisprudence that virtually allows it to sit in theological judgment over different practices. It has done this by recognising that it is only those practices that are “essential” to religion that enjoy constitutional protection. Any other ritual is seen as secular and amenable to the state’s interference.