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In a significant judgment, the Supreme Court, on Friday, 10 January, observed that the access to internet cannot be suspended indefinitely.
A three-judge bench held that freedom of speech and expression under Article 19(1)(a) of the Constitution includes the right to internet. Any restrictions on access to internet have to follow the principle of proportionality under Article 19(2) of the Constitution.
The apex court, however, did not strike down any of the restrictions in Jammu & Kashmir, including the five-month internet shutdown. The bench, however, laid down the law on how such restrictions in the state are to be assessed and challenged.
Kashmir has been without internet for 158 days. Since the abrogation of Article 370 on 5 August and the reorganisation of the erstwhile state into Union Territories, the valley has witnessed the longest recorded shutdown in a democracy.
India leads the world in restricting access to the internet, and has ordered more shutdowns than any other country since 2017. According to an internet shutdown tracker maintained by the Software Freedom Law Centre India, the country imposed at least 106 shutdowns in 2019, 134 in 2018 and 79 in 2017.
Freedom of Expression Covers Access to Internet
The bench of Justices NV Ramanna, R Subhash Reddy and BR Gavai observed that internet shutdowns cannot be ordered to suppress dissent, and Section 144 of the Code of Criminal Procedure (CrPC) cannot be mechanically imposed. It directed the Jammu & Kashmir administration to publish all Section 144 and internet shutdown-related orders proactively.
Justice Ramanna, reading out the judgment he authored on behalf of the bench, said, "Liberty and security are always at loggerheads. It is the Court's job to ensure that the citizens are provided all rights and security,"
“Internet is a major means of information. Therefore right to Freedom of Expression through internet is part of Article 19(1)(a) and restrictions on it should be in accordance with restrictions to the right.”
The apex court had heard a clutch of petitions from Anuradha Bhasin, Executive Editor of Kashmir Times, Congress Rajya Sabha MP Ghulam Nabi Azad, and other interveners. It had concluded its hearings on 27 November and reserved its judgment.
Responding to the judgment, Vrinda Grover, who represented lead petitioner Anuradha Bhasin told The Quint, “Well, I think they can assert their right to their freedoms to begin with. I think what we need to see here is that simply because you live in an area where there might be some concerns does not mean your freedoms are suspended.
Snapshot of SC Verdict on Internet Shutdown
- Indefinite suspension of internet not permissible. Periodic reviews of any suspension order must be carried as per the provisions laid down in Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
- Order of suspending internet indefinitely is a violation of Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
- Freedom of speech and freedom of trade through the internet is protected under Article 19(1) (a) and 19(1) (g) of the Constitution. It can only be reasonably restricted in accordance with Article 19(2) and 19(6).
- State authorities directed to publish all Section 144 and other restrictions like internet shutdowns so that the citizens have access to them and can challenge the restrictions.
- A Review Committees to look into all internet shutdown orders.
- Section 144 of CrPC can be used to deal with apprehension of danger cannot be mechanically imposed. But must satisfy tests of proportionality.
No Immediate Relief But Shutdowns Open To Challenge
An important aspect of the judgment is that it does not immediately strike down any of the orders placed by the government. It, however, paves the way for the orders to be challenged by citizens.
“Although the order grants no immediate relief to the people of Kashmir who have been without internet for past 159 days but review under Telecom Suspension Rules has been ordered. Let's hope this is the end of this repressive practice unworthy of a democracy with ambitions of a digital superpower,” said Mishi Choudhary, Technology Lawyer and Managing Partner, Mishi Choudhary Associates
Shadan Farasat, lawyer for petitioner Ghulam Nabi Azad told The Quint that “overall an extremely progressive judgment that protects the rights of the citizens.”
Senior Supreme Court advocate Sanjay Hegde, speaking with The Quint, described the judgment as “a balanced exercise in propotionality. It tells the government that under the garb of national security you cannot shut down everything...Routine internet shutdowns will now become subject to challenge and judicial review.”
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