- Facts of the Case
The issue begins with a security warning issued by the Civil Secretariat, Home Department, and administration of Jammu and Kashmir, confirming that they should shorten their stay and make safe arrangements to return. Educational institutions and offices were also closed until further orders. On August 4, 2019, internet, mobile connectivity, and landlines were turned off until further notice (Ramana, 2020).
On August 5, 2019, India’s President applied constitutional provisions to Jammu and Kashmir, stripping it of special status since 1954. The District Magistrate restricted movement, violating peace and tranquility. Journalist movements were challenged under Article 19 of the Constitution, and the Supreme Court is now considering the legality of internet shutdowns (Posts, February, 2024).
- Issues Raised
- Whether the Government can claim exemption from producing all the orders passed under Section 144, CrPC and other orders under the Suspension Rules?
- Whether the freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is a part of the FR’s 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, CrPC were valid?
- Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was breached due to the restrictions?
- Contention
The Petitioners in the case revolve around internet restrictions on the Kashmir Times Srinagar Edition, which have been causing a “grinding halt” in print media. The executive editor, Anuradha Bhasin, argued that the government failed to provide the necessary reasons for the restrictions, and that they were passed on apprehension of danger to law and order. An intervenor argued that the state should balance measures to maintain national security and curb terrorism with the rights of citizens, and that the restrictions imposed were temporary but in contravention of the Indian National Telecom Policy, 2012. Another intervenor argued that the necessity to test the order based on the circumstances on which the prevailing orders were passed was part of natural justice and should be accessible to the public. The petitioners also argued that the state cannot claim any exception or privilege before the courts to produce the orders, and that restrictions should be specific to the group apprehended to breach the peace (Posts, February, 2024).
Respondents
The Attorney General for the Union of India, Mr. K.K. Venugopal, argued that the background of terrorism in Jammu and Kashmir must be considered before imposing restrictions. He argued that the government should take preventive measures to prevent violence and internal militancy. The Solicitor General for the State of Jammu and Kashmir, Mr. Tushar Mehta, argued that the state’s primary duty is to protect citizens, and that the state is suffering from both physical and digital cross-border terrorism. He argued that the restrictions imposed were gradually relaxed, and that the Magistrates of their jurisdiction were best equipped to know the actual situation of the area (Mishra, February 25, 2022).
Mr. Mehta also argued that the orders passed under Section 144 of CrPC can be preventive in nature for the safety of citizens. He argued that it is impossible to segregate troublemakers from other citizens, and that courts have limited jurisdictions when national security is at stake. He also argued that the internet was never restricted in
Jammu and Ladakh regions, as it can be used to circulate fake news, images, and messages. He also argued that newspapers have one-way communication, while the internet allows two-way communication, making it difficult to apply the same jurisprudence. The which are orders issued followed the procedure outlined in the suspension rules and are being strictly reviewed.
Rationale
The Legality of the Internet Shutdown
The Indian Supreme Court has ruled in favor of the government’s claim that the internet could be used to propagate terrorism, challenging India’s sovereignty and integrity. The court rejected the State’s justification for a total ban on the internet, stating that it lacked the technology to selectively block internet services. However, it acknowledged the government’s contention that the internet could be used to propagate terrorism, and had to determine the extent to which the restriction burdened free speech. The court considered both procedural and substantive factors when determining the constitutionality of the internet shutdown. The Suspension Rules under Section 7 of the Telegraph Act allowed the government to restrict telecom services, including internet access, subject to certain safeguards. The Review Committee is now responsible for determining the duration of the suspension order (Bhattacharjee, (2020) SC 1725 (India)).
Freedom of Press
The Court denied this request. Freedom of the press is unquestionably one of the most important features of a democracy, and it is well protected by the Constitution. The petitioner failed to produce any evidence that state orders imposed restrictions on press freedom, including the publication and distribution of newspapers.
As a result, the court was unable to determine whether such a claim was legitimate. Since then, the petitioner has resumed publishing. As a result, the court ruled that it was not a violation, and that the government was protecting press freedom.
Defects of Law
In the aforementioned decision, the Hon’ble Supreme Court focused on the procedural aspect of law, stating that procedural justice cannot be sacrificed for substantive justice. The Honorable Court observed that the procedural mechanism for internet restrictions is twofold: contractual and statutory. In this case, the latter part is addressed because it is more relevant to the situation at hand. Statutory restrictions, as the name implies, refer to restrictions imposed by the IT Act of 2000, the Criminal Procedure Code of 1973, and the Telegraph Act.
The Court stated that the government cannot justify the shutdown under Section 69A of the Information Technology Act, 2000 read with the Information Technology Rules, 2009 for blocking access to information because it blocks access to specific websites on the internet.
6. Inference
The court ruled that internet access prohibitions are only valid in limited circumstances that affect fundamental rights. To ensure that natural justice is not violated, the court ordered that the proportionality test be followed. While the court did not remove internet restrictions, it did broaden the definition of free speech and expression by including internet access as a necessary component of the Article. The judgment established principles for future suspension orders to prevent state abuse of power. The internet has become an essential part of people’s lives, particularly during times of coronavirus lockdown. In such cases, the internet becomes a fundamental right under Part III of the Indian constitution (Nandini Saikia, 2023).
Author
Purnima Divate
D. E. S’s Shri Navalmal Firodia Law College