On the 10th January 2020 Supreme Court 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 judgment 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 judgment 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.
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 Supreme court on 10th January 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 declared that the judge while exercising power underneath Section 144 was obligated “to balance the rights and restrictions supported the principles of proportionality and thereafter, apply the smallest amount intrusive measure”.
“Our Constitution safeguards the expression of divergent views, legitimate expressions, and disapproval, and this cannot be the idea for invocation of Section 144, CrPC unless there’s sufficient material to indicate that there is probably to be an incitement to violence or threat to public safety or danger”, the Supreme court said.
Repudiating the Jammu & Kashmir government’s argument that the court couldn’t examine all the orders issued underneath 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.
“Under Section 144, CrPC repetitive orders would be an abuse of power,” the court said.
With reference 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 the internet strictly in accordance with the Shutdown Rules. “The existing Suspension Rules neither give for a periodic review nor a time limitation for an order issued underneath the Suspension Rules. Until this gap is stuffed, we direct that the Review Committee implanted underneath Rule 2(5) of the Suspension Rules must conduct a periodic review within 7 working days of the previous review, in terms of the requirements under Rule 2(6)”.
The court was also not convinced by the government’s 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.
The apex court also considered the issue of 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 web, the court upheld the liberty of the press and ascertained that “there isn’t any doubt that the importance of the press is well established underneath Indian Law. The liberty of the press is a demand in any democratic society for its effective functioning”.
“… liberty of the press is a valuable and sacred right enshrined underneath Article 19(1)(a) of the Constitution. This right is needed in any fashionable democracy without which there can not be a transfer of knowledge or requisite discussion for a democratic society.
“Responsible governments are needed to respect the liberty of the press at all times. Journalists are to be accommodated in reporting and there’s no justification for permitting a weapon system of Damocles to hang over the press indefinitely.
“We announced that the liberty of speech and expression and the freedom to practice any profession or persevere any trade, business or occupation over the medium of net enjoys constitutional protection underneath Article 19(1) (a) & Article 19(1)(g). The restriction upon such fundamental rights ought to be in consonance with the mandate underneath Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality”, the court ascertained in its judgment.
The right to access to the web is additionally a salient feature of the Universal Declaration of Human Rights (UDHR). According to Article 19 of the UDHR “every individual has the right to freedom of opinion and expression; this right includes the liberty to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
In a recent judgment of the Kerala High Court “Faheema Shirin R K v. State of Kerala & Others”, stated that, “When the Human Rights Council of the United Nations have found that the right to access to web 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 net had a differential and higher impact on downtrodden sections of the society who depend on it for life and livelihood.