The Supreme Court has ordered the government to review “forthwith” any existing orders that restrict basic rights and free movement in Jammu and Kashmir. The court upheld the freedoms of free speech, expression, and trade or business on the Internet as fundamental rights to be constitutionally protected.
- It, however, refused to express any views on whether the very access to the Internet is a fundamental right or not.
- The Supreme Court order came primarily on public interest litigation (PIL) by the editor of Kashmir Times, Anuradha Bhasin, challenging the lockdown in the state.
- Sweeping five-month-old restrictions on the internet and the right to assembly have impacted people’s freedom to conduct their business in Kashmir.
- Suspension of telecom and Internet services in the Valley are in place since August 5 following the abrogation of the special status of the erstwhile State under Article 370.
- India tops the list of Internet shutdowns globally. The ongoing shutdown in Kashmir is the longest ever in any democratic country.
- India witnessed a suspension of mobile and broadband Internet services in many states in the wake of anti-CAA protests.
Legal backings of communication shutdowns: The Information Technology Act, 2000, the Criminal Procedure Code (CrPC), 1973 and the Telegraph Act, 1885 are the three laws that deal with the suspension of Internet services.
- In 2017, the central government notified the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules under the Telegraph Act to govern suspension of the Internet.
- The competent authority to issue an order under the Suspension Rules, in ordinary circumstances, would be the Secretary to the Ministry of Home Affairs.
- The Rules also say that in case the confirmation does not come from a competent authority, the orders shall cease to exist within a period of 24 hours.
- Clear reasons for such orders need to be given in writing and need to be forwarded to a Review Committee by the next working day. The Suspension Rules do not provide for publication or notification of the orders of the government.
- Further, the confirmation must not be a mere formality but must indicate the independent application of mind by the competent authority to the order passed by the authorized officer, who must also take into account changed circumstances if any, etc.
Section 69A of the Information Technology Act, along with the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 provide for a mechanism to block information from public access through any computer resource by a direction from the Central Government or any officer specially authorized in this behalf.
Section 144 of CrPC gives power to a District Magistrate, a sub-divisional Magistrate or any other Executive Magistrate on behalf of the State Government to issue an order to an individual or the general public in a particular place or area to "abstain from a certain act" or "to take certain order with respect to certain property in his possession or under his management".
- This means the fundamental right of peaceful assembly provided under Article 19 of the Constitution is curtailed by the administration.
Conditions related to the issue of an order under Sec. 144
- The magistrate has to pass a written order which may be directed against a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
- In emergency cases, the magistrate can pass these orders without prior notice to the individual against whom the order is directed.
- The order can also be revoked or altered by the magistrate or the state government on their own (suo moto) or after an application by an aggrieved person(s).
The three-bench SC order deals with
- The shutdown of the internet and other communication services,
- The enforcement of prohibitory orders under Section 144 of the Criminal Procedure Code across Jammu and Kashmir, and
- The resultant effect of both these on the freedom of the press.
Key takeaways from the SC judgment:
The uses of the Internet as a medium for free speech as well as for trade and commerce is constitutionally protected: The SC 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 restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.
- Although the court stopped short of ruling that access to the Internet is a fundamental right, it said that the Internet as a medium is used to exercise other fundamental rights.
- The court recognized that the 2017 Rules are the only procedure to be followed to suspend Internet services in the occurrence of a “public emergency” or for it to be “in the interest of public safety”.
- No ‘secret orders’. Although the Suspension Rules do not provide for publication or notification of the orders, the government is bound to publish all orders it passes regarding such restrictions so that they can be challenged in a court of law on grounds of proportionality.
- Every order imposing a restriction should state the reason, the exigency that necessitated it and the features that make it clear that it is the least intrusive measure.
- ‘Gaps’ highlighted in the current Suspension Rules: The court pointed out that the government was able to continue with the suspension of Internet services because the 2017 Rules did not define the word “temporary”. No time-limit was prescribed in the rules.
- The court asked the legislature to repair this lacuna. Till then, any order of Internet suspension under the rules would be reviewed within a week of its issuance.
- Section 144 & ‘abuse of power’: Repetitive orders under Section 144 CrPC was an abuse of power.
- The power under Section 144 Criminal Procedure Code, being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger.
- Despite the 2017 rules, the government has often used the broad powers under Section 144.
- Survive the test of proportionality: It also lays down that any reasonable restriction on fundamental rights, be it an Internet ban or a Section 144 order, will have to survive the test of proportionality, that is, the restriction should be proportionate to the necessity for such a measure.
- There should not be an excessive burden on free speech even if the complete prohibition is imposed, and the government has to justify the imposition of such prohibition and explain why lesser alternatives will be inadequate.
- Restoring essential websites: It further instructed the government to consider restoring government websites, localized/limited e-banking facilities, hospital services, and other essential services in areas in the Union Territory, where it was otherwise not thinking to do so immediately.
Significance of the judgment:
- Judicial review easier now: While suspension orders were always subject to judicial review, lack of availability of such orders in public domain prevented such challenges before courts.
- National security Vs. liberty: What the state was arguing, in this case, was that this is a matter of national security given that it pertains to Kashmir with a history of militancy. They said, therefore leave it to the state, armed forces, and security forces to determine what restrictions need to be imposed, and the court should not be reviewing these orders. which mandated passing of orders under Section 144 to suspend the Internet in Kashmir.
- On that aspect, the court said that it will judicially review executive orders.
Having rejected the government’s stand that it could not produce all the orders on the restrictions imposed since August 4, 2019, the court fails to strike them down on that ground. The court failed to give a ruling on the validity of the government’s actions. It fails to hold the government to account for the manner in which it exercised its powers. Thus it can be concluded that an apex court judgment in a fundamental rights case appears to have the character of an advisory opinion.
A case for Right to Internet access as a fundamental right:
Lifeline for people:
- Technology-based gig economy: thousands of delivery workers for Swiggy, Dunzo and Amazon and the cab drivers of Uber and Ola — depend on the Internet for their livelihoods.
- Promotion of the right to education: the Internet is a mode of access to education for students who do courses and take exams online.
- Access to transport and healthcare: for millions of urban and rural people; it is also a mode to access to transport and e-health care for those who avail of health services online.
- Means for business and occupation for small and individual-owned enterprises that sell their products and services online, especially those staffed by women and home-based workers.
- Mobile and broadband Internet shutdowns impact women, girls, and marginalized communities more disproportionately than others.
- Economic loss: Around 4,196 hours of internet blackouts in India cost the economy close to $1.3 billion in 2019, said a 7 January report by UK-based research firm Top10VPN.
- The Kerala High Court judgment in Faheema Shirin R.K. v. State of Kerala & Others: It has held ‘Right to Internet Access’ as a fundamental right. The Court declared that the right to have access to the Internet becomes part of the right to education as well as the right to privacy under Article 21 of the Constitution of India.
- Article 19 of the Universal Declaration of Human Rights states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
- The Human Rights Council of the UN has found that the right to access the Internet is a fundamental freedom and a tool to ensure the right to education.
- The 2018 Human Rights Council of the United Nations Resolution on the promotion, protection, and enjoyment of human rights on the Internet: The resolution affirmed that the same rights that people have offline must also be protected online, in particular, freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice and includes the Internet.
- Amending 2017 rules: Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 should be suitably amended to provide for publishing ‘written reasons’ for lockdown. Also ‘the word temporary’ should be clearly defined to avoid indefinite lockdown.
- Reducing internet shutdowns: Indian Council for Research on International Economic Relations (ICRIER) has recommended several remedies, including official communication and data about shutdowns and policies, as well as restricting the use of blanket shutdowns.
- A disaster management mechanism is feasible to follow and the Government should be equipped technologically and physically to deploy the same in times of emergency.
- Telcos’ responsibility: It should be one of the responsibilities of telcos to inform their customers in advance about network shutdowns.
- Administrative and Government authorities should be equipped with the tools to use the Internet for counter-speech purposes to manage public emergencies.
- Curtailing use of Section 144 to shut down the Internet and devising inclusive rules: there should be a public dialogue for policies like Temporary Suspension of Telecom Services rules and the IT act.
The success of Digital India and Pradhan Mantri Gramin Digital Saksharta Abhiyan (PMGDISHA) which aim towards digital inclusion, depends on access to the internet to everyone.
Test of proportionality:
- Puttaswamy case(2017), the SC laid down a four-fold test to determine proportionality:
- A measure restricting a right must have a legitimate goal (legitimate goal stage).
- It must be a suitable means of furthering this goal (suitability or rationale connection stage).
- There must not be any less restrictive but equally effective alternative (necessity stage).
- The measure must not have a disproportionate impact on the rights-holder (balancing stage).
Also read: Longest Internet Ban In Jammu & Kashmir