Kashmir’s Legal Exceptionalism Reinforced

A single judge bench of the Delhi High Court recently passed an order, rejecting a plea by the petitioner, Sublime Software, challenging a blocking decision by the Union Government under Section 69A of the Information Technology Act, 2000 (“IT Act”). The blocking order banned 14 mobile messaging applications in Kashmir on the grounds of sovereignty and national security, including the petitioner’s app Briar. The petitioner challenged the order for failing to meet the procedural requirements for authorization.

In this blogpost, we critically analyze the Delhi High Court’s ruling, arguing that it exemplifies a troubling trend of legal exceptionalism in Kashmir. We critique the order for its unqualified deference to the states’ national security claims, failing to examine the merits of those claims at all. We highlight how the Court cherry-picked legal precedents, overlooking crucial ones and that it did not adequately scrutinize the low standard of review it established for the state.

Background

The petitioner, a software development company, created Briar, a free and open-source communication app. Briar features end-to-end encryption and is reportedly used by journalists and activists. The app operates without an internet connection, ensuring reliable communication during emergencies or disasters. In a highly surveilled region like Kashmir, where internet access is frequently disrupted, Briar provides a stable and dependable means of communication. Following the reorganization of the state into two union territories, 4G services were suspended for 18 months in Kashmir. A report indicated that in 2022, the region experienced more internet shutdowns than any other in the world.

It is crucial to note that the petitioner could not challenge the blocking order itself because they were not informed of the blocking and had no access to the order. The petitioner became aware of the ban in May 2023 when users reported being unable to access the app. In practice, this blocking power under IT Act Section 69A is often misused by the union government, with the provision of notice to the affected party being more of an exception than a standard practice. As a result, the petitioner challenged the blocking order on the grounds of non-compliance with the procedural requirements set forth in the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 (“Blocking Rules“), specifically the requirement for a notice for blocking and a right to be heard either ex-ante or post. The government, however, broadly asserted that the blocking order was passed on the grounds of a threat to national security and sovereignty, as the 14 apps enabled communication amongst terrorists.

We observe that the Delhi High Court has provided the state with unqualified deference, with the invocation of national security interests, stating that “the principles of natural justice can be given a go-by in matters related to the security and sovereignty of the country.” The Court did not examine the merits of either of the two primary deficiencies pointed out by the petitioners.

However, the procedural safeguards under the Blocking Rules cannot be given a “go-by” on the grounds of national security. In the subsequent section, we explain that even if deference must be offered for national security claims, such blanket deference is unmerited.

Procedural Deficiencies

The order fails to reference the Supreme Court judgment in Shreya Singhal vs. Union of India (2015), which addressed the constitutionality of Section 69A. In Shreya Singhal, the majority concluded that Section 69A aligned with the right to free speech and expression because it was “narrowly drawn” and included appropriate safeguards, such as notice and the opportunity to be heard. The Supreme Court emphasized the significance of notice, connecting it to the right to challenge blocking orders through a writ petition under Article 226 of the Constitution. In this case, the absence of an order means that the petitioner could only challenge the procedural aspects rather than the merits of the national security claim, which goes to the heart of the matter. Thus, these two safeguards are sine qua non for the invocation of the IT Act Section 69A, rather than being merely principles of natural justice which in certain situations can be suspended on national security grounds. Hence, the Delhi High Court order goes against the established Supreme Court precedent.

National Security

Regarding the suspension of principles of natural justice on national security grounds the Delhi High Court selectively cites cases and fails to properly apply the precedent it handpicks. The Court cites the Supreme Court decision in Ex-Armymen’s Protection Services (P) Ltd. v. Union of India (2014) and fails to acknowledge Madhyamam Broadcasting Limited v. Union of India (2022), which sets a higher threshold for the suspension of principles of natural justice. In the former, the Supreme Court noted that the state would need to justify that the suspension has a nexus with national security, and the Court is “entitled to call for the files to evaluate and determine if the situation of national security arises.” In contrast, in Madhyamam Broadcasting Limited, the Court held that “mere involvement of issues concerning national security would not preclude the state’s duty to act fairly.” The Court opined that if the government intends not to apply the principles of natural justice, then it would have to justify it on the touchstone of proportionality.

If the Madhyamam Broadcasting Limited standard was applied in this case, the Court would have to conduct a thorough examination of the Union government’s invocation of national security. This would necessitate analyzing the blocking order and the relevant factual circumstances surrounding it while applying the various stages of the proportionality test.

The Court even fails to apply the Ex-Armymen’s Protection Services standard of review properly. The Delhi High Court does not engage with the merits of the petitioner’s arguments at all, accepting the assertion that the apps were utilized by terrorists without any scrutiny. The order lacks any indication that the Court reviewed the blocking order or requested evidence from the state to establish a prima facie connection between the respondent’s claims and the grounds specified under Section 69A. Hence, the Court’s reasoning relies heavily on speculative national security concerns, granting the state wholesale deference. This approach is antithetical to the judiciary’s role in scrutinizing such claims, even in matters of national security (one may claim especially in such cases).

Concluding thoughts: Kashmir exceptionalism

In her work, Ghosh has demonstrated that the languages and jurisprudence of Indian constitutionalism and emergency powers have served to establish and normalize a legalized permanent emergency in Kashmir. This legal architecture of exceptionalism has transformed Kashmir into a perpetual state of exception, where the rule of law is selectively applied, and the constitutional norm is systematically eroded. The Indian Supreme Court has played a key role in this transition, from upholding the suspension of habeas corpus right soon after independence, to the recent decision which effectively denies the right to self-determination to the Kashmiri population.

The Delhi High Court’s order in the Sublime Software case contributes to this architecture of legal exceptionalism. The order shows unwavering deference to national security concerns, uncritically accepting governmental claims while disregarding established Supreme Court precedents. Applications like Briar, which can enable communication without the internet, play a key role in ensuring ease of communication in a place which has faced more internet shutdowns than anywhere in the world. Restricting access to such crucial communication tools further entrenches the state’s control over information channels, and solidifies the state of exception.

This ruling starkly contrasts with the Delhi High Court orders in writs filed by Tanul Thakur challenging website blocking. On May 11, 2022, the former Chief Justice, in Tanul Thakur v. Union of India W.P.(C) 13037/2019, mandated the government to provide a copy of the ban order and grant a hearing to the petitioner, despite reliance on Rule 16. In Tanul Thakur v. Union of India W.P.(C) 13037/2019, W.P.(C) 788/2023, on July 20, 2023, Justice Subramonium Prasad (same judge as in the Sublime Software case) analyzed the order’s merits and instructed the respondent to check if a suitable disclaimer could be put in place (a less restrictive measure) and consider unblocking his account. These orders are progressive, marking the first time a court required an aggrieved party to be provided with the blocking order and meaningfully examined the merits of the order itself (to an extent). However, in the Sublime Software case, Justice Subramonium Prasad appears to have departed from this progressive stance, adopting a markedly different approach when dealing with matters related to Kashmir. This exceptionalism is not merely a temporary suspension of rights but a fundamental restructuring of the rule of law, where the exception becomes the norm.