Indefinite net suspension impermissible says SC orders immediate review in J&K

Right to Information and Right to Know are important aspects of freedom of speech and expression and the internet is at present the greatest supplier of information, if not of knowledge. It facilitates Right to Information; hence it has been equated with fundamental rights. The telephone and the internet are means of expression because a person talking on the phone or communicating through the internet exercises his right to freedom of speech and expression.

Thirty-five years after declaring that newspaper publication was part of the right to free speech, the Supreme Court had recently  ruled that expression of views and carrying out trade through internet are also part of the constitutionally guaranteed fundamental right to free speech and indefinite suspension of internet services is impermissible.

Suspension of Fundamental Rights in India- Supreme Court
Suspension of Fundamental Rights in India- Supreme Court

Legal Issue

Whether net suspension permissible, after the situation upon revocation of Article 370 in J&K

Facts of the case

Petitions were filed by Congress’s Ghulam Nabi Azad and Kashmir Times publisher Anuradha Bhasin against the suspension of internet in the wake of the Centre’s decision to scrap the special status for J&K.

The Supreme Court did not examine whether access to the internet is a fundamental right as this issue was not raised by the petitioners. However, it was held that “Freedom of Speech and Expression through the medium of internet is an integral part of Article 19 (1)(a)” and the Supreme Court has thus formalised access to the internet as a part of fundamental rights and has held that the government cannot deprive citizens of any fundamental right, except under certain conditions. This ruling came during a hearing of a plea in connection with the internet blockade in J&K since August 5, 2019, after the revocation of Article 370.

Legal standpoint

Article 19 of the Indian constitution

  1. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practise any profession, or to carry on any occupation, trade or business

(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence

The order marked an attempt to deal with the perennial tension between the right to freedom and liberty and the requirements of national security and public safety, with the court seeking to locate the pendulum in the middle. It placed the “legitimate” use of internet in the pantheon of fundamental rights, while acknowledging that it was subject to reasonable restrictions, like other fundamental rights.

On balance, the court took the line that while access to internet should be the norm, deviations could be allowed in the interest of order and safety provided they were temporary, proportionate and justified by reasons which were spelt out clearly and reviewed periodically. “We direct the state and competent authorities to review all (existing) orders suspending internet services forthwith,” the bench said.

The SC also said since existing provisions did not provide for periodic review of orders or the duration they would remain in force, “we direct the review committee must conduct a periodic review within seven working days of previous review” of orders suspending telecom services.

The continued internet shutdown in Kashmir has been a contentious issue, with opposition and activists criticising the curbs and the government insisting it was a security issue to be evaluated by the local administration, wary of the use of social media and messaging services to organise and foment trouble. The internet shutdown also attracted adverse international commentary.

The verdict steered clear of getting into the question of whether the communication ban was illegal, made no adverse comments on the Centre but made it clear that a prolonged shutdown could not be countenanced unless it was periodically reviewed and a satisfactory justification offered. It could also set the stage for the executive to close the gap in rules which do not limit the period for which internet services can be suspended.

Writing the judgment, Justice Ramana said, “An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Suspension can be utilised for temporary duration only.”

On the criticality of internet in contemporary times, it said, “There is no doubt that there are certain trades which are completely dependent on internet. Such a right of trade through internet also fosters consumerism and availability of choice. Therefore, freedom of trade and commerce through the medium of the internet is constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).”

The ruling making free speech and trade through internet part of Article 19 would mean views expressed on social media using internet must not fall afoul of restrictive boundaries in the shape of security of the state, friendly relations with foreign countries, public order, decency or morality, contempt of court, defamation or incitement to an offence. This could open a new chapter in social media experience.

Thus, it said no fundamental right was absolute and right to free speech too could be restricted by the government in compliance of requirements under Article 19(2) of the Constitution. To impose restrictions on free speech, including use of internet, the SC laid down the ‘doctrine of proportionality’ and said the degree and scope of restrictions, both territorial and temporary, must have a clear nexus with the necessity to combat an emergent situation.

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