Right to freedom of speech and expression through the Internet is part of Article 19(1)(a): Supreme Court of India

THE Supreme Court today held the "freedom to access the Internet" is a fundamental right and is protected under Article 19(1)(a) – freedom of speech and expression – of the Constitution of India.

Holding that orders suspending the internet under the Suspension Rules were subject to judicial review, the court, however, stopped short of calling the shutdown in the union territory as illegal and directed that the order be reviewed by a committee.

The judgement was delivered by a three-judge bench comprising Justices N V Ramana, R Subhash Reddy and B R Gavai in Anuradha Bhasin vs Union of India and Ors, where the petitioner challenged the internet shutdown in the Union Territory of Jammu & Kashmir.

The judgement comes after five months of internet suspension in Jammu & Kashmir – the longest in the history of India. The internet shutdown was imposed in the union territory on August 5, 2019, after the abrogation of Article 370 of the Constitution.

The Indian Government has shut down the internet 381 times since 2012 using the powers given under the above laws and rules, according to reports by the Software Freedom Law Centre.

The major issues and observations of the apex court:

Section 144, Shutdown Rules and Internet 

Section 144 of the Criminal Procedure Code (CrPC.) empowers the state government to take measures, including the imposition of certain restrictions, to maintain public tranquillity.

In August 2017, the central government under the Indian Telegraph Act, 1885 promulgated the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (Shutdown Rules) which provided the authorities with the legal basis to pass an order for an internet shutdown under Section 144. Under these rules, the government can temporarily suspend the internet in any part of the country.

The apex court today held that "the power under Section 144, CrPC cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights" and asserted that the magistrate while exercising power under Section 144 was duty-bound "to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure".

"Our Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144, CrPC unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger", the apex court said.

Rejecting the Jammu & Kashmir government's argument that the court could not examine all the orders issued under Section 144 and has limited jurisdiction to interfere, the court held that the state was bound to disclose all the orders passed under Section 144 so that aggrieved persons can challenge them.

"Repetitive orders under Section 144, CrPC would be an abuse of power," the court said.

With regard to the Shutdown Rules, the court held that indefinite suspension of the internet was not permissible and could be used for a temporary duration only.

The court also called for a periodic review of orders suspending internet strictly in accordance with the Shutdown Rules. "The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, we direct that the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6)".

National Security argument 

The court was also not convinced by the government contention that the internet shutdown in the union territory was critical for safeguarding national interests and internal security.

"We need to caution against the excessive utility of the proportionality doctrine in the matters of national security, sovereignty and integrity," the court said, while calling for a balance between national security and the liberty of the people.

Freedom of Press

The apex court also considered the issue whether the freedom of the press of Anuradha Bhasin, Kashmir Times Editor, was violated due to restrictions.

Bhasin contended before the court that she was not able to publish her newspaper from August 6, 2018, to October 11, 2018.

While upholding the right to access to the Internet, the court upheld the freedom of the press and observed that "there is no doubt that the importance of the press is well established under Indian Law. The freedom of the press is a requirement in any democratic society for its effective functioning".

"… freedom of the press is a valuable and sacred right enshrined under Article 19(1)(a) of the Constitution. This right is required in any modern democracy without which there cannot be transfer of information or requisite discussion for a democratic society.

"Responsible governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely.

"We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality", the court observed in its judgement.

The right to access to the internet is also a salient feature of the Universal Declaration of Human Rights (UDHR). Article 19 of the UDHR states that "everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

The High Court of Kerala in a recent judgment in Faheema Shirin R K v. State of Kerala & Others, stated that "When the Human Rights Council of the UN have found that the right to access to the internet is a fundamental freedom and a tool to ensure the right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of the law." The judgment pointed out that the lack of access to the internet had a differential and higher impact on weaker sections of the society who depend on it for life and livelihood.