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| @ | January 11,2020

The judgment of the Supreme Court of India in Anuradha Bhasin vs. Union of India which pertains to internet shutdown in Jammu and Kashmir provided some relief to the people of the Union Territory whose civil liberties have been severely constrained since the August 2019 – when Article 370 was abolished.  While the court did not comment on whether access to the internet was a fundamental right, the Court declared 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 lead petitioner Anuradha Bhasin, Kashmir Times editor, had sought directions to ensure that the State creates an enabling environment for journalists and all other media personnel in all parts of Jammu and Kashmir to practice their profession. In this Article, the author has examine the judgment, and its significance for the similar cases that may arise in future.

 

 

THE Supreme Court of India on January 10, 2020 delivered a significant judgment on a batch of petition challenging the prolonged and arbitrary internet shutdown in the erstwhile Jammu and Kashmir since August 5, 2019 when its special status was taken away by the President of India upon the recommendation made by the Parliament to this effect.

The matter before the apex court was argued in the context of the five month long restrictive orders and Internet blackout in Kashmir. The judgment delivered by a three judge bench consisting of Justices N V Ramana, R Subhash Reddy and B R Gavai, considered five primary issues. They were –

  • Whether the Government can claim exemption from producing all the orders passed under Section 144, Cr.P.C. and other orders under the Suspension Rules?
  • Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?
  • Whether the Government’s action of prohibiting internet access is valid?
  • Whether the imposition of restrictions under Section 144, Cr.P.C. were valid?
  • Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?

Even though the context and the facts of the judgment revolves around the happenings in Kashmir, the observations of the Court is extremely relevant and a crucial reminder of due procedures and constitutionalism for the whole of India.

 

Production of Orders

 

The Court observed that the Respondents (the government) failed to present the documentation of all the orders that were passed by different authorities in Kashmir to restrict people’s right to movement and communication to the Petitioners and before the Court.

It noted, “There is no dispute that democracy entails free flow of information. There is not only a normative expectation under the Constitution, but also a requirement under natural law, that no law should be passed in a clandestine manner” Hence, the Supreme Court observed that it is mandatory for the government to present copies of each and every order to ensure transparency and accountability, which are the most important elements in a democracy.

Judges reiterated that it was the right of the petitioners to have all the information that is necessary to effectively articulate their case demanding fundamental rights. This right to access information, the court declared was a significant facet of the right to freedom of speech and expression as contained under Article 19 of the Constitution.

The Court minced no words as it strongly stated that the State had the obligation to act in a responsible manner to uphold the fundamental rights of citizens.  The State cannot deprive citizens of their fundamental rights in such casual and cavalier manner. The judgment elaborated that as a matter of constitutional ethic and natural law practice, the State was obligated to not pass any law in a clandestine manner.

It then went on to direct the respondent State / all competent authorities to publish all orders in force and any future orders under Section 144 of CrPC and for the suspension of telecom services including internet to enable the effective persons to challenge it before any appropriate forum.

 

Fundamental Rights under Part III and Restrictions Thereof-

 

The discussion on the issue regarding the relationship between the Right to freedom of trade and occupation and the access to internet formed the most elaborate part of the judgment. The inquisition of the topic extended deep into the flow of the jurisprudence of the fundamental rights and the reasonable restrictions that follow them.

The Court contended that the technology influx has impacted the way our rights are fulfilled. It was, therefore, necessary for the law to imbibe the technological development and accordingly mould its rules so as to cater to the needs of society. The Court referred to its earlier judgments by which the freedom of print media and television were recognized part of the freedom of expression.

As an extension of the same, the Court observed that indeed, the use of the internet formed a part of the right to freedom of speech and expression and trade and commerce which were similarly regulated by reasonable restrictions. However, the judgment did not comment on whether access to internet by itself was a fundamental right.

In their explanation about the jurisprudence regarding the extent to which freedom of speech and expression could be restricted, the Court held that only the speech that may incite any imminent violence, do not enjoy constitutional protection. Therefore, the next question was about the extent to which free speech could be restricted and what shall constitute the test of proportionality between free speech and national security. It was held that the principle of proportionality must balance the means and the end.

The Court observed that in the first stage itself, the goal of any such restrictive measure must be determined. This goal must be a legitimate goal. However, before undertaking the aforesaid measure, the authorities must enquire if there exists any alternative mechanism for the achievement of the legitimate goal. It is pertinent that the least restrictive mechanism is adopted by the State, taking in consideration the facts and circumstances. The orders must be supported with sufficient material to the affected parties whose fundamental rights are being restricted and the same shall be amenable by judicial review.

 

Internet Shutdown

 

Having clarified the substantive law around restriction of the internet, the judgment furthered its explanation on the procedural aspect of these regulations. It was observed that since 2017, States have used the Suspension rules under Section7 of the Telegraph Act to restrict telecom services including access to internet. Rule 2 of the Suspension rules outline the procedure for the restriction of these services. The Rule exhaustively describes the due process by which a list of competent authorities can issue orders of suspension.

The Court directed that every order must record the necessity and the reasons making such action unavoidable. Hence, every order must satisfy the test of proportionality. Such order must further be sent to the review committee within one day. It was further stressed that such orders can be passed only after thorough considerations and application of mind and in circumstances of grave public emergency where the necessity of circumstances is proportional to the restriction. Every such order passed must be published to make them available for judicial review.

The court observed that the Suspension rules had gaps, which they suggested, must be reviewed by the Legislature. Until the fulfillment of these gaps, the Court ordered a review of these orders, every seven working days. Additionally, The Court ordered for the review of all Internet suspension orders by the Review Committee constituted under Rule 2(5) of the Temporary Suspension of Telecom   Services (Public Emergency or Public   Service) Rules, 2017 ,which were notified under the Telegraph Act.

The Court, accordingly, directed that the orders which are not in accordance with the law laid down in the present judgment, shall be revoked and further in future, if there is a necessity to pass fresh orders, the law laid down in the present judgment must be followed.

It said in any case, the State/concerned authorities are directed to consider forthwith allowing government   websites, localized/limited e-­banking facilities, hospitals services and other essential   services, in those regions,  wherein the internet services are not likely to be restored immediately

It may be noted that From 2017-2018, as per a UNESCO report, India experienced the maximum number of internet shutdowns in the world. The over five months long internet blackout in Kashmir is the longest internet closure in any democracy of the world. Under the circumstances, this judgment is particularly relevant in the context of restoration of the fundamental right to freedom of speech, expression and assembly in India.

 

Restrictions under Section 144 of CrPC

Section 144 of the CrPC enables   the   State   to   take   preventive measures   to   deal   with   imminent   threats   to   public   peace.   It enables the Magistrate to issue a mandatory   order   requiring certain   actions   to  be  undertaken,  or a prohibitory  order restraining citizens from doing certain things. However, the Court reiterated that the Section had the necessary safeguards to prevent arbitrary use.

Referring to the earlier judgment in  Babulal Parate case, the Court stressed on the need for application of mind and enquiry into the existence of any imminent threat. The Court said the orders by the Magistrate must record the material facts under which such orders are passed to leave the scope of judicial review by the affected parties. These orders are needed to be published or notified to all those affected by them and such orders cannot be passed for an indefinite period. Significantly, the court said the repeated passage of such orders amounts to abuse of power. The orders must be reviewed regularly and they should be rescinded or altered as required.

The Court asserted that the power under Section 144, Cr.P.C could not be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. The Magistrate must fulfill the test of proportionality while passing such orders.

This direction by the Supreme Court comes at a time when Section 144 is being used daily to suppress peaceful protesters and student movements. It is not just a wakeup call for the authorities and the government to preserve due process but a fresh streak of hope that the Apex Court retains its independence and will to protect constitutionalism in India.

 

Freedom of the Press

 

The judgment reiterated that a free press was a sacred right within the right to free speech and expression. In context of the petitioner’s argument that the restrictions on internet and mobile services caused hindrance to their press freedom, the Court discussed the doctrine of the chilling effect and its jurisprudence in India and the US. However, since the Petitioner had resumed publication, the Court did not speak further on the subject except the directive to the government that it must, at all times, respect freedom of press. There could not be a justification to restrict the freedom of press indefinitely.

Recently, India witnessed the revival of its assertive democracy by which citizens from every intersection of the society participated in peaceful protests against governmental policies. While this assertion breathed freshness into the reclamation of democracy in India, the state response to it, remained shockingly oppressive. Several peaceful protesters were detained while prohibitory orders were arbitrarily imposed.

The judgment is a refreshing reiteration by the Supreme Court for the need to restore due process and accountability in India. It is a strong reminder to the government and all other authorities that the constitutionalism mandates the reasonableness behind each of their actions. Arbitrary use of force and restriction of fundamental rights cannot persist against rule of law.

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