by Rohini Dahiya & Towseef Ahmad Dar
Living under siege and through one of the longest internet shutdowns in any democracy, people from the erstwhile State of Jammu and Kashmir continue to deal with its aftermath. The 5th August 2021 marked the second anniversary of the abrogation of the State’s constitutional status as under Article 370 and the subsequent crackdown that forced an approximate of fourteen million people under broad restrictions, one of the majors being the shutdown of the internet and telecommunication services. While the Indian authorities allowed for significant restorations six months after the clampdown, the perennial onslaught on freedom of speech and access to information has had an indelible impact on the lives of people.
These blackouts have kept every neighbourhood, especially in the region of Kashmir, impaired and impacted. There have been more than fifty-three instances of kill switches in the region since the year 2019. These restrictions on information and its underlying infrastructure on the pretext of its alignment with national security, violate the fundamental human rights to freedom of speech, access to information and privacy.
The Bhartiya Janta Party (BJP) led government at the centre and their politicians have over the years played to the gallery equating cybersecurity with national security, characterising cyberspace as a sacred sphere for the government to exercise its power without public scrutiny. These deft efforts on the part of the government posing the primacy of national security divorced from the Human Rights framework have now become a bellwether, which has often received scathing attacks from the international community. In the year 2017, David Kaye, UN Special Rapporteur on Freedom of Opinion and Expression and Michel Forst, Special Rapporteur on Human Rights Defenders reprimanded that the restrictions on internet and communication services in Jammu and Kashmir had a “character of collective punishment”. However, the government and the administration continue to conveniently cajole people and the international community into believing that the need for such draconian actions are aimed at countering terrorism.
Internet shutdowns for countering terrorism or for throttling freedom of speech?
Deborah Brown, a senior researcher and advocate of digital rights at the Human Rights Watch and Anriette Esterhuysen, a human rights defender and computer networking pioneer from South Africa, ably points out in their article that states use the hoary old conception of security as protecting themselves from political instability and apply disproportionate measures to ensure its protection. The case of internet shutdowns in the erstwhile State of Jammu and Kashmir reveals similar patterns whereby freedom of cyberspace is posited as concomitant to national insecurity. This prospect of nation preservation directly undermines human rights in several ways, especially freedom of speech and expression, and hence itself becomes the source of insecurity.
Douglas W Vick, who was a Senior Lecturer at the University of Stirling and a Visiting Fellow with the Stirling Media Research Institute, in his chapter in the book titled Human Rights in the Digital Age suggests “no society in the world has concluded that free speech is an absolute barrier to state regulation of harmful expression”. Nonetheless, the government of India has increasingly justified these tactics, with the Indian Foreign Minister, Subrahmanyam Jaishankar remarking “How do I cut off communications between terrorists and their masters on one hand, but keep the internet open for other people? I would be delighted to know.”
It not only questions the legal basis and the speaking reasons of such abhorrent claims but also blows the gaff of India’s louche stand for the protection of human rights both nationally and internationally.
Almost half a decade ago, the United Nations Human Rights Council for the first time called on all the member states to refrain from upholding measures of disruption of access or dissemination of information online. However, it was only after Anuradha Bhasin, executive editor of The Kashmir Times, took to the court for the complete restoration of the internet after the abrogation of Article 370 that the Supreme Court of India held for the constitutionality of the freedom of speech and expression, and the freedom to practice any profession over the internet, under Article 19 (a) and 19 (g) of the Indian Constitution. Yet, the government continues to glib erroneous phrases in support of national security and countering terrorism.
It is of crucial importance to know that the Supreme Court of India in the Sabu Mathew George v. UoI Case (2018) observed that Right to Access Information and Internet is a basic right and “right to freedom of speech and expression” subsumed “the right to be informed” and “right to know”.Also, the High Court of Kerala in the Faheema Shirin v. State of Kerala (2019) upheld the right to access the internet as a fundamental right under right of privacy and education. However, the judgement in the case of Anuradha Bhasin v. the Union of India(2020) did endorse the principle of proportionality of the internet shutdowns and withdrew the communications blockade, leading to the restoration of the landline communications after six months of total blackout. It fell short of declaring access to the internet as a fundamental right and proposing the complete restoration of the internet. As a corollary, the people of Jammu and Kashmir after two years of the draconian exercise by the government have access to only weak internet networks especially in the region of South Kashmir viz Pulwama, Shopian, Anantnag, Kulgam and Baramulla, impeding their basic rights to education, health care and livelihood.
This whimsical arbitrariness is foisted by the administration on the pretext that 4G networks can transmit harmful expressions at an exponential scale as compared to 2G networks. The pitching of such claims is nothing short of a dog whistle to appropriate the political interests of the majority Indians at the sufferance of the fundamental rights of Kashmiris, which were further trammelled when the government in June 2020, announced the new media policy in Jammu and Kashmir, empowering authorities to decide what is ‘fake news, plagiarism and unethical or anti-national activities.
Thus, these dubious attempts of countering terrorism and securing the citizens of Jammu and Kashmir are in all intents and purposes aimed at attacking the freedom of speech and expressions of the people in the region. It is suggested by the figures available at the South Asia Terrorism Portal that there was a situation of cooldown in the State since the year 2006 which could not last post-2016. The figures also affirm that the terrorist activities in the State have been comparatively more when there was slow 2G internet network speeds and severe when there was almost no landline and communications networks available. It, therefore, uncloaks the austerity of the majoritarian agenda of the BJP government to throttle the freedom of speech and expression of people in the state by its well-wrought claim of securing national integrity and representing any attempt of resistance by Kashmiris as ‘seditious’.
Surveillance: A grave human rights violation
The use of surveillance for countering socially undesirable behaviour presents a rather equivocal picture, for what the state may deem as undesirable conduct might go against the fundamental Right to Privacy of an individual. This elusiveness comes to the surface as the discourse of human rights does not have an independent existence but comes into existence by the virtue of conscious social decision.
With the advent of new technologies and the creation of contesting cyberspace, the social decision about maintaining the Right to Privacy gets shrouded by the arguments in favour of cybersecurity. To which Brown and Esterhuysen in their article point out that cybersecurity is not experienced evenly by everyone, as the marginalised sections of the society are at a particular risk of cyber insecurity, which might not always be a product of violation by the non-state actors, but is more likely to be consequenced by the government itself.
In the case of Jammu and Kashmir surveillance as a tool for countering non-state activities has long been used by the administration, which has endured a feeling of rancour and insecurity in people, who feel being pushed to the walls by a continuous attack on their fundamental right to privacy. In April 2020, various Kashmiri journalists namely Gowhar Geelani and Peerah Ashiq were taken into custody for their so-called ‘anti-national’ social media posts and had criminal police investigations opened against them. The archaic law under Section 144 of the Criminal Procedure Code of the Indian Constitution (CrPC 1973), was routinely used by the Indian government to target politicians, journalists, students and human rights activists to silence their voices until the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017 was enacted.
However, with a highly opaque new media policy in place the administration is scrutinising civil society members violating their right to privacy and freedom of speech. Jan Rydzak, who was a former Google Policy Fellow at the Global National Network argues in one of his reports that this penchant for internet shutdown and constant surveillance of cyberspace on the part of a stable democracy like India, perpetrates grave human rights violations and would lead astray other developing countries.
Treating cybersecurity as a human rights issue: A road ahead
The ubiquity of today’s digital technologies underpins societies both locally and globally. Smart networks, though, provide for the expansion and manifestation of human rights assisting non-governmental organisations, groups and individuals to reinforce their demands for the protection of the fundamental rights of people. It may also develop the potential of creating specific perceptions of the non-virtual world. In most of such cases, cyberspace is assumed majorly by the non-state actors to seek umpteen opportunities for furtherance of their ideas both virtually and non-virtually.
The reason why Kashmir is India’s most regulated cyberspace is for the fact that the government expresses serious concerns over the illicit activities taking place online in the region pointing out mainly to the pro-Pakistani organisations working round the clock towards creating instability by fueling insurgencies. These affirmations put forth by the government raises apprehensions on its part for using cybersecurity as an excuse to exercise greater control over people’s lives.
The Indian State has veneered laws and policies by providing facile generalisations for scrutinising the privacy of its citizens. The susceptible use of power by the government is a ramification of it seeing the cybersecurity issue as divorced from the human rights framework. It stems from a major lacuna in international law ruminating on the matters of cybersecurity which is mainly focused on International Humanitarian Law that applies only in times of armed conflicts. This understanding of cybersecurity is problematic in the sense that it fosters a fallacy that states are in a constant situation of cyber conflict hence, justifying the abuse of power at the hands of the state.
The United Nations Group of Governmental Experts in the field of information and telecommunications in 2015 elaborated in the context of international security that cyberspace must entail a human rights perspective. Although cyber insecurity can be experienced by an individual at any point in their lives, it is felt more in the time of negotiation and peacebuilding after the conflict. Since International Human Rights law applies both, during the time of conflict and at the time of peace, it provides a comprehensive approach to address the gross human rights violation committed online at the hands of state and non-state actors.
India, in case of the conflict of the erstwhile state of Jammu and Kashmir, requires to strike a fair balance between liberty and security concerns, so that the right to life is secured and enjoyed in the best possible manner. Meenakshi Ganguly, South Asia Director at the Human Rights Watch, categorically remarked that it is the responsibility of the government to ensure the complete security of the Kashmiris, but would also mean respecting human rights of every single individual including that of the protestors. Hence, it would only suffice if the adoption of the law and policy framework is inclusive of the human rights standpoint, which would require the cybersecurity decisions by the government to challenge the assertion that human rights stammer the prospects of national security by putting these rights at the centre of the policy development.
Now with the COVID pandemic wreaking havoc world across, any step debarring from the human rights framework would result in psychological, sociological, political and economic distress. Any measures condemning the freedom of speech and expression, right to access information and most importantly right to life and privacy would further raise the furore amongst the Kashmiris, severely impacting the lives of women, children, third gender and queer communities who already live at the margins of the society.