Facts
- Jammu and Kashmir had enjoyed special status under Article 370 of the Indian Constitution since 1954, which granted it its own Constitution and restricted property ownership to its permanent residents. However, on August 5, 2019, the Government of India issued the Constitution (Application to Jammu and Kashmir) Order, 2019, effectively abrogating Article 370. This removed the State’s special status and brought it fully under the provisions of the Constitution of India.
- Prior to this decision, on August 2, 2019, the Civil Secretariat, Home Department of Jammu and Kashmir, issued an advisory directing tourists and Amarnath Yatra pilgrims to leave the region. Shortly thereafter, schools and offices were ordered to remain closed until further notice. On August 4, 2019, mobile networks, internet services, and even landline connections were suspended across the region. Additionally, District Magistrates imposed restrictions on movement and public assembly under Section 144 of the Code of Criminal Procedure.
- The communication blackout and movement restrictions severely limited press freedom, raising concerns of violations of Article 19 of the Indian Constitution. Journalists, including petitioner Anuradha Bhasin, faced major obstacles in carrying out their professional duties. In particular, the suspension of internet services made it impossible for her to publish her newspaper, highlighting the impact of these restrictions on the freedom of the press.
ISSUES
- Whether access to the Internet forms an integral part of the fundamental rights guaranteed under Article 19(1)(a) and Article 19(1)(g) of the Constitution of India.
- Whether the Government’s action of suspending or prohibiting internet access in Jammu and Kashmir was constitutionally valid and proportionate.
- Whether the imposition of movement restrictions under Section 144 of the Code of Criminal Procedure was legally justified.
- Whether the restrictions, particularly the communication blackout, resulted in a violation of the freedom of the press of the Petitioner
- Whether the Government can claim exemption from producing all restriction orders before the Court in matters concerning fundamental rights.
CONTENTION RAISED BY PETITIONER
The petitioners contended that restrictions on internet access must be assessed on the principles of reasonableness and proportionality, as such measures directly impact the fundamental rights to freedom of speech and expression, as well as the right to conduct trade and commerce. They further challenged the non-disclosure of the orders pertaining to the suspension of mobile and internet services, along with those issued under Section 144 of the Code of Criminal Procedure (CrPC).It was argued that although the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 (Suspension Rules, 2017) prescribe a clear framework for suspending internet services, the impugned orders failed to adhere to the prescribed procedure. According to the petitioners, the orders lacked proper justification, reflected non-application of mind, and were issued merely on apprehensions relating to ‘law and order a concept distinct from ‘public order’, which alone constitutes a valid ground for imposing reasonable restrictions under Article 19(2) of the Constitution. The petitioners further emphasized that the Suspension Rules, 2017 envisage only a temporary suspension of services and not a blanket or indefinite prohibition. They asserted that the State was duty-bound to adopt the least restrictive measures, striking a balance between ensuring public safety and preserving citizens’ fundamental rights.
CONTENTION RAISED BY THE RESPONDENT,
The respondents, represented by the Attorney General and the Solicitor General, defended the validity of the restrictions imposed under Section 144 of the Code of Criminal Procedure (CrPC) and the suspension of mobile and internet services. They argued that the measures were taken in light of the prevailing circumstances of cross-border terrorism and internal militancy in the State. Ensuring national security and safeguarding the lives of citizens, they submitted, constitutes the foremost duty of the State, and the restrictions were therefore both necessary and proportionate, arising out of historical and security imperatives. The Solicitor General further contended that the petitioners had exaggerated the factual situation and misrepresented the impact of the restrictions. He maintained that there was no curtailment of freedom of movement, and that traditional modes of communication such as newspapers, television channels, and radio broadcasts continued to operate unhindered. The restrictions, according to the State, were specifically intended to curb the spread of provocative content and inflammatory messages that could disturb peace and order in the region. Additionally, the Solicitor General highlighted that authorities on the ground were vested with the discretion to impose suitable restrictions depending on local conditions. He also emphasized the potential misuse of the internet, citing the “dark web” as a medium for illegal trafficking of drugs and arms, as well as the circulation of fake or misleading information capable of inciting violence. Given the internet’s instantaneous two-way communication capability and its potential for mass dissemination of harmful content, he argued that the standards applicable to print media could not be directly applied to online communication.
JUDGEMENT&RATIONALE.
The Court reaffirmed that freedom of speech and expression under Article 19(1)(a) extends to the internet, as does freedom to trade and practice a profession under Article 19(1)(g). However, these are subject to reasonable restrictions under Articles 19(2) and 19(6). While it did not declare access to the internet a fundamental right, it held that online expression and commerce are constitutionally protected. Restrictions must be proportionate legitimate, necessary, the least restrictive measure, and open to judicial review.
Assessing the internet shutdown, the Court found that complete and indefinite suspension was impermissible. Under the 2017 Suspension Rules framed under the Telegraph Act, such orders must be necessary, unavoidable, and time-bound. Indefinite shutdowns fail the proportionality test. Orders must also be published and subject to review.
On restrictions under Section 144 Cr.P.C., the Court held that such power can be exercised only in cases of imminent danger or emergency and cannot be used to suppress legitimate dissent. Indefinite or repetitive orders are unconstitutional, and magistrates must record material facts to justify their application.
Regarding freedom of the press, the Court noted the importance of protecting journalistic freedom but found insufficient evidence that restrictions directly prevented newspaper publication. Nonetheless, it stressed that governments must respect press freedom and avoid creating a chilling effect.
On the question of disclosure, the Court held that the State could not claim blanket exemption from producing orders imposing restrictions. Citing Ram Jethmalani v. Union of India (2011), it emphasized that transparency is essential in a democracy and that citizens have a right to know. Orders restricting fundamental rights must be published unless countervailing public interest justifies secrecy, subject to judicial scrutiny.
DEFECT OF LAW
- Non-recognition of the Right to Access the Internet as a Fundamental Right
One of the most significant defects lies in the Court’s refusal to declare access to the internet as an independent fundamental right. While the Court conceded that speech, expression, and trade conducted through the internet fall within the ambit of Article 19, it did not go further to recognize internet access itself as a protected right. This approach is narrow, as fundamental rights such as the right to education (Article 21A), right to privacy, livelihood, and health (all under Article 21) today heavily depend on internet access. The Kerala High Court in Faheema Shirin v. State of Kerala (2019) explicitly recognized access to the internet as integral to the right to education and privacy, demonstrating a more progressive stance than the Supreme Court. - Lack of Clarity on “Public Order” and “Public Safety”
Another major shortcoming is the Court’s failure to define the contours of “public order” and “public safety,” the grounds often invoked to justify internet shutdowns. This ambiguity leaves scope for executive overreach, enabling governments to impose restrictions even for reasons as trivial as preventing cheating in examinations. For instance, several shutdowns in Rajasthan and West Bengal were ordered on such grounds, which cannot reasonably qualify as threats to public order. This vagueness violates the principle of legality, a key component of constitutional governance. - Incomplete Application of proportionality principle.
Although the Court stressed that restrictions must satisfy the test of proportionality and that complete suspensions are to be used only in necessary and unavoidable circumstances, it did not set a clear threshold for what qualifies as necessary. This leaves room for subjective interpretations by executive authorities. Unlike in Banashree Gogoi v. Union of India (2020), where the Gauhati High Court ordered immediate restoration of services once normalcy returned, the Supreme Court in this case failed to set timelines for review or restoration. - Missed Opportunity for Expanding Digital Rights
The judgment represents a missed opportunity to align Indian jurisprudence with global standards. Internationally, access to the internet is increasingly being viewed as a human right, essential for realizing freedoms such as expression, education, and development. By not explicitly recognizing internet access as a fundamental right, the Court maintained a conservative stance, thereby limiting the progressive evolution of constitutional rights in the digital era.
INFERENCE
This case reflects a cautious balancing of individual freedoms and national security. It provides a constitutional framework for challenging arbitrary restrictions but falls short of fortifying digital rights in a manner consistent with India’s democratic and developmental aspirations. The judgment, therefore, represents both a step forward in protecting fundamental freedoms online and a reminder of the judiciary’s missed opportunity to broaden the horizon of constitutional rights in the digital era.
RISMA C.S
GOVERNMENT LAW COLLEGE KOZHIKODE