| Court | Supreme Court of India |
| Judges | Justice N.V. Ramana, Justice B.R. Gavai and Justice Subhash Reddy |
| Citation | AIR 2020 SC 1308 |
| Case No | Writ Petition (Civil) No. 1031 of 2019 |
| Case Type | Writ Petition |
| Petitioner | Anuradha Bhasin and Ors. |
| Respondent | Union of India and Ors. |
FACTS OF THE CASE:
- Jammu and Kashmir, a disputed Indian territory bordering Pakistan, historically held special status under Article 370 of the Indian Constitution, granting autonomy, a separate Constitution, and restrictions on land ownership by non-residents. The court’s involvement stemmed from the events of August 5, 2019, triggered by Constitutional Order 272, extending the entirety of the Indian Constitution to Jammu and Kashmir. Subsequently, various measures were swiftly implemented, including the curtailment of outsiders’ visits, closure of educational institutions and offices, imposition of Section 144 restrictions, and the shutdown of internet services, mobile connectivity, and landlines.
- The first petition, W.P. (C) No. 1031 of 2019, filed by Ms. Anuradha Bhasin, underscored the indispensability of the internet for modern journalism and raised concerns about the print media’s halt due to the internet shutdown since August 6, 2019. The petitioner argued against the government’s failure to justify the order as per Suspension rules, relying on vague apprehensions rather than substantial evidence and highlighting the prolonged imposition of these supposedly temporary restrictions.
- The subsequent petition, W.P. (C) No. 1164 of 2019, brought by Mr. Ghulam Nabi Azad, challenged the government’s actions, emphasizing that a national emergency was unjustified in this scenario. The argument pivoted on the absence of imminent disruptions to law and order, questioning the validity of imposing Section 144 of the Criminal Procedure Code.
- While Mr. Venugopal and Mr. Mehta presented the state’s perspective, stressing the necessity of these measures considering the historical context of militancy in the region and prioritizing citizen safety, the Magistrates defended the restrictions, citing the relaxed situation and the preventive nature of these measures for citizen safety, not solely targeting social media but also addressing concerns regarding the dark web’s illicit activities.
ISSUES RAISED
Issue 1: 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?
Issue 2: Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?
Issue 3: Whether the imposition of restrictions under Section 144, CrPC were valid? Whether the Government can claim exemption from producing all the orders passed under Section 144, CrPC?
Issue 4: Whether the Government’s action of prohibiting internet access is valid?
CONTENTION FROM BOTH THE SIDES:
Petitioner’s Argument:
The Petitioner – Ms. Anuradha Bhasin, the Executive Editor of the Kashmir Times Srinagar Edition, emphasized the indispensable role of the internet in the modern press, lamenting that the absence of internet access since August 6th, 2019, brought her newspaper’s operations to a standstill. The petitioner’s contentions were multifaceted. First, she highlighted the heavy reliance of certain trades on Internet connectivity, asserting that the right to trade via the Internet fosters consumerism and enables diverse access to goods and services.
The petitioner contended that the freedom to conduct trade and commerce through the Internet falls under Article 19 (1) (g) of the Indian Constitution, subject to limitations outlined in Article 19 (6). She questioned the validity of restrictions under Section 144, asserting they were disproportionate to the aim of preserving “public order” and weren’t justified by an imminent threat. Highlighting the prolonged duration of these restrictions, exceeding 100 days despite claims of temporariness, she urged the government to adopt less restrictive measures balancing citizens’ rights and public security. She emphasized that broad internet restrictions in Jammu and Kashmir impede not only Freedom of Speech and Expression but also citizens’ ability to pursue trades, professions, or occupations.
Respondent’s Argument
Mr. K.K. Venugopal, the Attorney General for the Union of India, and Mr. Tushar Mehta, the Solicitor General of the State of Jammu and Kashmir, presented several arguments:
Firstly, they emphasized that the imposed restrictions on internet access in Jammu and Kashmir were deemed necessary to counteract terrorist activities.
Secondly, they contended that the conventional standards governing free speech and expression could not be uniformly applied to the Internet due to its boundless nature. They highlighted the inherent risks posed by the unregulated flow of communication through social media and the looming threats from the dark web.
Additionally, they clarified that the intent behind the restrictions was not to target specific websites but to implement a blanket shutdown of the internet across the entirety of Jammu and Kashmir.
Finally, they refuted the plaintiff’s assertions regarding the severity of the internet restrictions, alleging that such claims were significantly exaggerated.
RATIONALE OF THE CASE:
Issue 1: The rights encompassing freedom of speech and expression, as well as the freedom to engage in any profession, occupation, trade, or business through the medium of the Internet, are integral components of the fundamental rights enshrined in Part III of the Constitution:-
- The Supreme Court firmly established the internet’s role in exercising freedom of speech and expression under Article 19(1)(a), drawing from precedents like the Indian Express v. Union of India case that upheld the print medium’s importance in Article 19(1)(a) rights. The case of Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana further extended citizen rights, safeguarding film exhibitions under Article 19(1)(a). While affirming the internet’s significance in enabling freedom of speech and expression, the court stressed that government-imposed restrictions must strictly align with Article 19(2), allowing limitations for specific interests like sovereignty, security, public order, among others, albeit only in necessary circumstances and within reasonable bounds. The Court held that:
- The rights to freedom of speech and expression as per Article 19(1)(a), and the liberty to engage in trade or business under Article 19(1)(g), exercised through the internet, enjoy constitutional protection. Consequently, any restriction on internet access must align with the standards of reasonableness delineated in Articles 19(2) and 19(6) of the Constitution. The court’s scrutiny ensures that while preserving peace and tranquillity, these limitations do not unduly burden the fundamental rights pertaining to freedom of speech and expression.
Issue 2: The restrictions imposed did not infringe upon the freedom of the press belonging to the Petitioner in W.P. (C) No. 1031 of 2019.
- The Court dismissed this petition, reaffirming the pivotal role of a free press within a democracy, a right strongly enshrined in the Constitution. However, the petitioner couldn’t substantiate their claim with concrete evidence demonstrating that the state’s orders curtailed press freedom, specifically concerning the publication and distribution of newspapers.
- As a result, the court was unable to ascertain the legitimacy of the claim. Subsequently, following the resumption of publication by the petitioner, the court deemed the situation non-violative of press freedom and expressed confidence in the government’s efforts to safeguard the freedom of the press.
Issue 3: The court deemed the imposition of restrictions under Section 144 of the Criminal Procedure Code (CrPC) as invalid. Additionally, the court asserted that the Government cannot evade the obligation to produce all the orders passed under Section 144, CrPC by claiming exemption.
- The Court stressed the importance of legitimate expression and democratic rights, cautioning against using Section 144 except in genuine emergencies, not for suppressing lawful activities. It highlighted that disruptions in law and order might not always indicate a breach of public order and that deciding on potential threats lies with magistrates and the state.
- The ruling emphasized the state’s obligation to disclose orders implementing restrictions, citing the freedom of speech and expression coverage of the right to information. It dismissed mere apprehensions as inadequate grounds for the state to withhold orders, underlining the necessity for legal justifications beyond mere concerns.
Issue 4: The Court concluded that the government’s decision to prohibit internet access lacked validity. In assessing the Constitutional legality of the internet shutdown, the Court emphasized the need to examine both procedural and substantive aspects of the action.
- The procedural mechanism governing internet suspension involves contractual agreements between Internet Service Providers and the Government, coupled with statutory regulations outlined in acts like the Information Technology Act, the Code of Criminal Procedure, and the Telegraph Act.
- The Suspension Rules under Section 7 of the Telegraph Act from 2017 set guidelines for imposing internet restrictions on certain grounds, section 5 (2) Telegraph Act allowed in cases of public emergency or for public safety, pending an assessment of such emergencies.
- However, these rules didn’t specify a maximum duration for suspension orders, placing the responsibility on the Review Committee to ensure the duration remains necessary for the situation.
- Therefore, The court firmly established that the government cannot evade presenting orders issued under Section 144 of the Criminal Procedure Code (CrPC) before the court. Acknowledging the indispensable role of the internet in contemporary life, the court affirmed it as a fundamental right within Part III of the Constitution, encompassing freedom of speech, expression, and the liberty to conduct professions, occupations, or trades online.
- Furthermore, the court outlined stringent criteria for the validity of internet prohibition, emphasizing specific circumstances where such restrictions would hold validity. It stressed the need for adherence to the test of Proportionality to ensure justice in imposing limitations on internet access, safeguarding Fundamental Rights.
- Despite the upheld restrictions, the judgment significantly broadened the interpretation of freedom of speech and expression by recognizing internet access as an integral element. It emphasized that curtailing such access should only occur in situations directly tied to national security concerns.
- While the judgment didn’t immediately alleviate the citizens’ plight, it established essential principles guiding future suspension orders and their procedural aspects. This framework aimed to curb potential abuse of power by the state in issuing such orders, offering guidelines to pre-empt similar issues in the future.
DEFECT OF LAW
The debate around the right to access the Internet versus national interests or security continues despite landmark judgments. Instances of internet shutdowns due to various apprehensions such as exam paper leaks, elections, or protests persist despite the principles of necessity, proportionality, and reasonableness highlighted in the recent surge of internet shutdowns. Yet, there are substantial concerns that demand immediate attention. The lack of clear parameters defining the test of proportionality raises questions about who oversees the balance between imposed restrictions and infringed individual rights. Moreover, the judgment leaves an undefined extent to which security concerns should warrant such restrictions, without outlining the circumstances posing a legitimate threat to national security.
Another flaw arises due to the limited purview of the Right to the Internet. While the Faheema Shirin case came close to recognizing the Right to the Internet as a distinct fundamental right, the court concluded that it serves as a medium for exercising other fundamental rights. This ambiguity leaves it vulnerable to government abuse. Nations guaranteeing internet access as a fundamental right, like Estonia, Greece, France, Finland, and Costa Rica, demonstrate minimal government interference due to this guarantee, unlike areas lacking such explicit protections.
INFERENCES FROM THE CASE:
After deliberation on the aforementioned aspects, the Court concluded that:
- India’s Constitution safeguards both freedom of expression and the liberty to engage in online professional activities.
- The Government possesses the authority to suspend the Internet; however, it must substantiate the necessity for such action and impose a temporal limit. In this instance, the Government failed to justify the necessity or specify temporal constraints, prompting the directive to review and lift unnecessary or indefinite suspension orders.
- Imposing restrictions under Section 144 of the Code of Criminal Procedure cannot curtail legitimate expression and is open to judicial assessment. Consequently, the Court mandated the State to reassess its imposed restrictions under this section.
Pragati Shreya
School of Law Galgotias University