A petition was filed in the Indian Supreme Court on Tuesday challenging the curbs imposed by the government in Kashmir for the past 90 days as unreasonable and disproportionate. Among other things, it asserted that reasonable restrictions on the Freedoms under Article 19 of the Indian constitution cannot be of such a nature that they extinguish the right itself.
In that light, this post shall analyze the justifiability of the Kashmir Lockdown using the test of reasonableness and the proportionality standard often used by the Supreme Court in determining the reasonableness of restrictions imposed on Fundamental Rights especially with respect to restrictions on Freedoms u/a 19 of the Indian Constitution.
The Test of Reasonableness
The test of reasonableness in India emerges from a series of Supreme Court cases, some of which have been discussed below for better clarity over this issue-
In the State of Madras v VG Row 1952, the court held “In considering the reasonableness of laws imposing restrictions on fundamental right, both the substantive and procedural aspects of the impugned law should be examined from the point of view of reasonableness and the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict.”
In Chintaman Rao v Madhya Pradesh 1958, it held-“The phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word ‘reasonable’ implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the, freedom guaranteed in Article 19 (1) (g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.”
In Narendra Kumar v Union of India AIR 1960, it held-“In applying the test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interests of the general public.”
This was reiterated in Pathumma v State of Kerala 1978, where the court held that-“The restrictions must not be arbitrary or excessive in nature so as to go beyond the requirement of the interest of the general public. What is required is that the legislature should take intelligent care in choosing the course which is dictated by reason and good conscience so as to strike a just balance between the freedom contained in Art. 19(1)(f) and the social control permitted by clause (5) and (6) of that Article.”
In Kashmir, the government has imposed massive curbs on media and the internet for the last 90 days without any reasoned order. Even when asked by the Supreme Court, the govt miserably failed to produce any order, affidavit or replies in matters relating to this lockdown and curtailment of civil liberties. Instead of placing sufficient material to justify its actions in Kashmir it only sought adjournments. Moreover, when seen in the light of the surrounding circumstances and the inherently anti-Muslim ideological foundations of the ruling dispensation, it becomes clear the restrictions in Kashmir are extremely arbitrary, excessive and beyond the requirements of the situation. It also lacks good faith and fails to take into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public.
The Proportionality Standard
Whereas the test of reasonableness lays down no clear formula but stresses that the restrictions must not be arbitrary or excessive in nature so as to go beyond the requirement of the interest of the general public, Proportionality Standard lays down an elaborate 4-prong formula (discussed below) to determine the reasonableness of an action. First, that a measure restricting a right must have a legitimate goal; second, that the concerned restriction must be a suitable means of furthering this goal; third, that there must not be any less restrictive but equally effective alternative to achieve that goal; fourth, that the measure must not have a disproportionate impact on the rights holder.
Of lately the Supreme court has started placing the proportionality standard at the center of the “reasonableness” inquiry as it is considered a more nuanced and better approach than the abstract test of reasonableness. Also, it is more rights-oriented & victim-friendly as the affected person has to show only the infringement of his/her Fundamental Right and then the burden shifts on the State to show that the infringements are justified, reasonable and proportionate in the given circumstance.
Though shreds of the proportionality approach can be clearly visible in the earlier cases that talked about the test of reasonableness, a more comprehensive deliberation on this issue took place only in recent cases some of which have been discussed below-
Modern Dental College v State of MP 2016
The court held that the doctrine of proportionality is implicit in Article 19. Referring to a Canadian case R v Oakes, it held that-“Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be rationally connected to the objective. Second, the means should impair “as little as possible” the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. The exercise which, therefore, to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests.”
This holding was affirmed in the Justice KS Puttaswamy v Union of India 2017 (Aadhar Judgement) wherein the Supreme Court upheld the right to privacy as a Fundamental Right implicit under Article 21 of the Indian Constitution. In the words of Justice Sikri, the proportionality of a measure can be ascertained on the following basis:-
- A measure restricting a right must have a legitimate goal (legitimate goal stage).
- It must be a suitable means of furthering this goal (suitability or rationale connection stage).
- There must not be any less restrictive but equally effective alternative (necessity stage).
- The measure must not have a disproportionate impact on the rights holder (balancing stage).
Now let’s apply this proportionality standard on the Kashmir Lockdown-
Whether restrictions in Kashmir have a Legitimate Aim?
The legitimate aim here concerns with aims that correspond to the constitutional values & goals and which the constitution does not prohibit. When it comes to Kashmir, there is a great deal of opaqueness on the motive behind the restrictions as the government has not been very forthcoming in explaining the rationale for the incessant restrictions except that the curbs have been imposed as a precautionary measure to maintain law and order. It should be noted however that under the garb of law and order, Kashmiris have been denied all their civil, political and constitutional rights to voice their concerns and express their opinions over political decisions concerning them taken without their consent. We cannot use terrorism as an excuse to shut down everything. Even if the government feels that there would be unrest, it should have allowed peaceful protests to be carried out. This whole exercise smacks of tyranny in a dictatorship and not a democratic exercise and hence it can never be a legitimate aim from the viewpoint of a constitution that claims justice, liberty, and equality as its guiding principles.
Whether the restrictions are a Suitable Means of furthering that Aim?
The purpose here is to examine the suitability of the means to achieve the given ends. Assuming that the aim in the present case is the maintenance of law & order, the government in order to further this aim has sent thousands of additional troops to the disputed region, imposed a crippling curfew, shut down telecommunications and internet, and arrested thousands of civilians including mainstream political leaders. And this continuous lockdown since the last 90 days has cost the region’s economy more than $1.4bn and thousands of jobs according to industry experts. In such a case, this brazen exercise can never be called a suitable means, especially in a democratic welfare state that boasts about the legacy of Buddha and Mahatma Gandhi. Such means are used by coward dictatorial regimes to curb dissent and uprisings. What kind of law and order can be achieved by shutting down everything and destroying the whole economy? Such a coercive means is not only not suitable but also unsustainable & unmaintainable in all circumstances.
Are there any less restrictive but equally effective alternative?
Complete shutdown and total lockdown is certainly the most extreme method to maintain law & order. It is also the least effective way as the whole functioning of society comes to a sudden halt. The purpose of law & order is to ensure smooth interaction between all organs & institutions of a society in order to facilitate its all-around progress & development. What is the point of achieving such a law and order where the society becomes a living dead which cannot freely communicate, interact and express itself? There certainly must be less restrictive and equally effective alternatives than this to ensure both law & order and normal functioning of the society. Experiences show that coercive methods have rarely been successful in achieving desired goals. The lasting peace that can be achieved by dialogue and negotiations with concerned stakeholders cannot be achieved by muzzling dissent through the fear of the bayonet. The current method is also economically unsound as it has cost billions of dollars and thousands of jobs in the past few months as discussed earlier.
Does the measure has a disproportionate impact on the right holder?
While the government may boast that it has achieved the law and order through these curbs but it cannot deny the disproportionate impacts on the rights holder ie the residents of Kashmir. The lockdown has certainly not come cheap. According to the Kashmir Chamber of Commerce and Industry estimates the shutdown has already cost the region more than $1.4bn (£1.13bn), and thousands of jobs have been lost. In the Puttaswamy case, the court held that a balance has to be drawn between the competing individual, societal and state interests. In the present case, the State interest appears to have taken overwhelming precedence over the individual and societal interests of Kashmir. Due to the lockdown, a large number of Kashmiris have been robbed of not only their basic civil and political rights & liberties but also their human rights. Hundreds of people have been arrested and held without trial and moved to jails far from home. Internet and media shutdown amounts to disproportionate restrictions on free speech. In the words of an eminent lawyer, never before the lives of 7 million people have been paralysed like this. Therefore the measure at issue certainly has a disproportionate impact on the rights holders who are common Kashmiris in the present case.
The excessive restrictions imposed by Government on civil and political liberties in Kashmir neither pass the muster of reasonableness nor of proportionality as laid down by the Indian Supreme Court in various cases. They are not a reasonable restriction within the meaning of Article 19 as they are arbitrary & excessive in nature and totally go beyond the requirement of the interest of the general public which has been suffering immensely for the last 3 months. They fail the proportionality inquiry as the measures at hand do not correspond to the greater constitutional values & goals that claim justice, liberty, and equality as their guiding principles. Also, these extremely coercive measures have cost the region’s economy billions of dollars and thousands of jobs according to industry experts and hence not only not suitable but also unsustainable & unmaintainable in all circumstances. Moreover, it is an extreme way to maintain law and order by shutting down everything and certainly not an effective way as the whole affairs & conduct of the society comes to a crippling halt and it becomes a living dead which cannot freely communicate, interact and express itself. Terrorism cannot be used as an excuse to shut down everything. Even if the government feels that there would be unrest, it should allow the peaceful protests to happen. This total shutdown has a disproportionate & enormous impact on the rights holder in the present case. Such coercive tactics are used by coward dictatorial regimes to curb dissent and uprisings. They do not suit a democratic welfare state that boasts about the legacy of non-violence preached by Buddha & Mohandas Gandhi.
Indeed, those who disbelieve and commit wrong and injustice – never will God forgive them, nor will He guide them to the straight path.Al-Quran 4:168