Kashmir Shutdown Unprecedented For A Democracy, Says UN Freedom Of Speech Expert

Twelve days have passed since the Indian government snapped mobile services, landlines and the internet in Jammu and Kashmir (J&K), making it impossible for Kashmiris to communicate with each other and the outside world.

Thousands of troops and a tight curfew have restrained Kashmiris from protesting Prime Minister Narendra Modi ’s sudden move to revoke J&K’s special constitutional status, and bifurcate the northern state, while the government has been trying to portray that everything is ‘normal’ there. However, ground reports suggest that security forces are using pellet guns and arbitrary arrests to quell any protests. 

The communication blackout has left parents queuing up for hours to speak to their children on a handful of phones made available in government offices and police stations. The local media in Kashmir has barely been able to function. Almost all political leaders — including two former chief ministers and a former Indian Administrative Service (IAS) officer — are under house arrest. A Kashmiri journalist was picked up in a midnight raid and detained without explanation before being released . 

As the United Nations Security Council discusses Kashmir for the first time in 48 years, HuffPost India spoke with David Kaye, the U.N. Special Rapporteur on Freedom of Opinion and Expression, who described the communication blackout as “unprecedented” for a democratic society.

Kaye, a clinical law professor at the University of California, Irvine, said, “I can’t think of a democratic country that repeatedly shuts down the internet for whatever reason.” 

Who is a Special Rapporteur? 

The United Nations Human Rights Council appoints human rights experts in all sorts of fields to monitor all sorts of human rights around the world. And the area they appointed me to monitor as Special Rapporteur is freedom of expression. I report to the U.N. on thematic issues like surveillance, protection of journalists and so forth. I communicate with governments on violations or alleged violations or laws and policies of concern. I conduct country visits. 

You report to the U.N. Human Rights Council in Geneva?

Correct. And to the General Assembly (located in the U.N. headquarters in New York).

Do they do anything with these reports?

Yeah, sometimes. Sometimes, they will adopt resolutions based on the rules that we suggest should be applied. In some circumstances, they might adopt a resolution that demands that a state act in compliance with our findings. It really depends on the nature of our report.

You are the Rapporteur on Freedom of Opinion and Expression. Is that different from speech and expression? 

Speech is something that is colloquially understood as being speech that we say from our lungs, our vocal chords, but expression captures a broader idea. Expression can be art, can be music, it can be any kind of media. Human rights law is very clear that freedom of expression includes the right to seek, to receive and impart information and ideas of all kinds through any kind of media. It’s a broader definition than plain old speech as a term. 

Mobile services and the internet in Kashmir have been snapped since August 5. It’s been 12 days. What’s your assessment of the situation? 

I’m really concerned about it. There have been shutdowns of the internet in Kashmir many times before. In those contexts, there would be a particular service, a mobile service would be shut down, or access to the internet would be shut down. I think the difference here is that not only has the internet shut down, but all telecommunications. So, it’s impossible for family members to be in touch with their families in Kashmir. It’s very difficult for them to know what is happening down the street, let alone around the world. So, I’m concerned that this kind of shutdown interferes in a very disproportionate way with the rights of everyone in Kashmir to have access to information, to have access to the internet for all sorts of reasons, to communicate both within the country and outside it.

Cable TV is working. Officials are claiming that landlines will be restored soon.  If this is to happen soon, there will be some communication, but does the situation remain equally concerning? 

It’s equally concerning. Part of my point was that because it has happened in the past, because it has happened in such a strong way over the past 10 days or so, there is no guarantee that this won’t happen again. The threat is always there for people in Kashmir that they will lose their ability to communicate and so simply because the government allows communication to return doesn’t mean that the last ten days — or however long this continues — simply disappears. It’s still a real interference with the right to freedom of the people of Kashmir. And frankly, people throughout India, who need to have information about Kashmir in order to make up their minds about whether they think what the government is doing is appropriate. 

You were appointed Special Rapporteur in 2014, have you seen anything like this?

There have been internet shutdowns in many places around the world, especially in central Africa. For example, in Cameroon, there was a very very lengthy shutdown of the internet in the English-speaking part of Cameroon. These kinds of shutdowns do take place. What is rather unique here is that internet shutdowns are extremely unusual, perhaps unprecedented, in democratic countries. I can’t think of a democratic country that repeatedly shuts down the internet for whatever reason. I want to distinguish India from Cameroon as an example. Democratic societies, democratic governments, do not typically shut down the internet. India is rather far ahead of others in doing that. In the context of how the Indian government would want to be compared, I think it would want to be compared to other democratic governments. Its shutting down the internet is really something quite different and very unusual.

It would be fair to say that you haven’t seen anything like this in a democratic country. 

For sure. This is unusual, unprecedented, among democratic governments. 

In Cameroon, was it just the internet or mobile services snapped as well?

There have been times when they snapped everything.

The concern is that lifting the communication blackout could lead to mobilisation, violent protests, loss of life and injuries. How does one weigh freedom of expression against all that? 

I would question your premise. Isn’t the curfew the reason why presently people in Kashmir are not able to demonstrate? Your question is presuming that if the internet is up, then people will protest and that could lead to all sorts of violence. But you tell me, isn’t the reason why there are not massive protests mainly because of the curfew? What the government is doing by shutting down the internet is — they can say it makes it harder for people to mobilise — but the real reason that people can’t mobilize is because of the troops on the ground that are forbidding them from going on the ground, from organising, from protesting. Both of those things are interferences with fundamental human rights that are protected under Indian law and under human rights law — the right to protest, the right to expression — and this kind of massive set of restrictions is really disproportionate even to that and seeking to prohibit violence. 

It is also prohibiting all sorts of things that are perfectly legitimate, even important, for people to do. Things like communicating with family, neighbours, doctors, communicating in order to do commerce.  I don’t know this to be true, but it is likely that people are having a harder time staying healthy and safe in an environment where they lack total communication than where it would be allowed and there may be protests on the streets. 

What about the argument that this has to be done in order to avoid a situation where there is violence and people get killed? 

It’s clear that the government has a legitimate interest in public order and public safety. My only point is that shutting down the internet is disproportionate to that end. It ends up interfering much more than is necessary in order to prevent violence. The government also has all sorts of tools to prevent violence, shutting down the internet is only marginally helpful for them to do it. Shutting down the internet, in fact, makes it harder for the people to know how to avoid violent protests. It makes it harder for individuals to know what is happening down the street so that they can be safe. 

I think it’s important for me to acknowledge that the Indian government has every responsibility and legitimate interest in maintaining public order, it’s just that the tool that it is adopting by shutting down communications is significantly disproportionate to that goal. 

You tweeted last week that this would be a good time for you to visit India. You re-upped your 2018 request to the Indian government. That was in the context of Kashmir? 

It’s always a good time to visit India. India proudly declares itself to be the world’s largest democracy. It has a very active internet industry, an active civil society on all sorts of issues related to journalism, issues on the internet. There have been all sorts of controversies around WhatsApp lynchings, internet shutdowns, intermediary liability, things that legislators and policymakers and courts have been engaged with in India for several years. It’s always timely to visit India but we can only do official visits to countries when we are invited by the government. I can’t just go to a country and visit and report to the U.N. There needs to be an official invitation. 

It was timely to re-up the official request to the Government of India (GOI) to conduct a visit because people are paying attention to freedom of expression in India. That was because of Kashmir, but reasons to visit India go way beyond Kashmir. 

When was the last time that a U.N. Special Rapporteur on Freedom of Opinion and Expression visited India?

Never. It’s interesting because the first Special Rapporteur on Freedom of Opinion and Expression was Indian, actually, but there has never been a visit by a Special Rapporteur on Freedom of Opinion and Expression to India. 

The first Special Rapporteur on Freedom of Opinion and Expression was an Indian? Who was it? When was this?

Yes. His name was Abid Hussain . From 1993 to 2002.

While journalists from the mainland and foreign agencies are flying in and out of Kashmir with reports, the local media in Kashmir is paralysed. Websites of local news websites have not been updated since 5 August. Local news channels cannot operate. 

The pressure that is being put on all Kashmiris is being put more fully on journalists. And that’s a real problem for all sorts of people. It’s a problem for people in Kashmir. You need information about what is happening in the country. It’s a bad thing for the people of India. It’s a bad thing for the international community, which needs information in order to make decisions. So, the shutdown is not just about making it harder for individuals to communicate with one another, but it’s also making it harder for the truth of what is happening in Kashmir to get reported on and that’s really contrary to the values of a democracy and it’s unrelated to issues of public order and safety. It’s really a very, very serious concern to me.

But information is coming out. The foreign and Indian media, TV, print and web, are managing to cover it. It’s only the local media which is handicapped due to the communication blackout. 

That’s absolutely true. But wouldn’t you still say that the amount of information that is able to get out is still rather limited? There is a certain amount of information that has been getting out, but it is by no means a free flow of information that we expect from democratic countries. And I think what you are pointing to rightly is that it’s even worse for people in Kashmir because the local news that is important for Kashmiris to have is very difficult to come by. 

Is India in violation of any international and human rights laws? Any treaties and agreements? 

India is a party to the International Covenant on Civil and Political Rights (ICCPR). It is the central treaty in international human rights law. It guarantees everyone’s rights to freedom of expression and it also says that when states restrict expression, they have to show that their restriction is necessary and proportionate to the achievement of a legitimate particular goal like protecting public safety and public order. I have not seen the government make that demonstration yet. And until it does, I have very serious concerns about its compliance with these provisions of human rights law.

The Security Council is having a closed door meeting on Kashmir today, but with the exception of Pakistan and China, foreign governments have said next to nothing about Kashmir. The United States and Russia, two permanent members of the Security Council are supporting India’s stand that this an internal matter. Are you concerned about the lack of pushback on the issue of freedom of speech?

There are many things going on here. There is the political issue around the status of Kashmir under Indian constitutional law and that’s not something I’m commenting on. That’s not my area of expertise, but it’s clear that the complete blackout out of the internet and communication in Kashmir should be the subject of very serious concern for the international community, and it is disheartening to see that governments that call themselves democratic and supporters of a free flow of information are not standing up for the people of Kashmir so that they can enjoy their rights. It does not appear that they are putting pressure on the Government of India and that is extremely disappointing.

There is the larger political issue of Kashmir’s constitutional status and then the violation of freedom of speech and expression. The international community can express concern about that aspect of the bigger problem?

I’m not saying that the status of Kashmir is a minor issue. It is of overriding importance for the future of human rights of the people of Kashmir. I’m only saying that’s not my area or expertise. It’s coming at a time when there are protests in Hong Kong, there are protests in Sudan. I’m saying it is important for the international community to reaffirm the rights of all people to peaceful protest and the right of all people to have information — all kinds of information, wherever it is coming from. It’s really problematic not to hear that kind of support from the international community in general, particularly over the last ten days or so. 

As the Special Rapporteur on Freedom for Opinion and Expression, do you have to do something? 

We are communicating with the government through our communication channels. We are watching it very closely and letting the government know about our concerns. I expect that we will issue a public statement in the next few days. 

When you say “we”?

My colleagues and I, among Special Rapporteurs. I should add that I would love to conduct a visit to India. Like we were talking in the beginning, India has never had a visit from a Special Rapporteur on Freedom of Expression. I think India has a lot to offer me in terms of the problems they face with respect to digital expression and so forth. I’m hoping they extend that invitation.