Access to internet is a fundamental right, says Supreme Court
Access to the internet is a fundamental right by extension, according to the Supreme Court’s ruling in the Kashmir restrictions petitions, which also pulled up the government up for the telecommunications blackout in Jammu & Kashmir that, the judges said in their order on Friday, cannot go on indefinitely.
Such orders on blackouts must now be published with specific reasons and it should be proportional to the concerns necessitating such suspension, Friday’s ruling said, while also directing the Jammu & Kashmir government to review all internet suspension orders within a week.
Accessing the internet to express speech and carry out trade is a fundamental right, the apex court said.
Further, by explicitly mentioning that such blackouts cannot be indefinite, need to be communicated, have to be reviewed every seven days, and must be backed by legitimate reasons, the Supreme Court has ensured that the process becomes more transparent than it currently is and has more checks and balances than it currently has.
The court also came down hard on the repetitive use of Section 144 of the Criminal Procedure Code that empowers a magistrate to issue orders (at the request of a state or Union territory) that prohibit the assembly of four or more people in an area. In the wake of protests against the Citizenship Amendment Act, many states across India have been all too quick to impose restrictions under Section 144 in some parts.
According to the Internet Shutdown Tracker, India saw 106 shutdowns in 2019, and 134 in 2018. A UK-based tech website, Top10 VPN, said in a recent report that the internet was switched off for almost 4,200 hours in India in 2019. This number aggregates all shutdowns in various parts of the country and does not mean all India was without internet access for 4,200 hours.
On Friday, a bench of justices NV Ramana, R Subhash Reddy and BR Gavai said that civil liberties and concerns of national security must be balanced, while laying down new protocols for authorities to follow when they need to suspend internet and telecommunication services or restrict people’s movement.
The judgment was pronounced on a batch of petitions challenging the restrictions in Kashmir after the central government on August 5, 2019 decided to remove special constitutional provisions and split the Jammu and Kashmir region. The Kashmir valley was simultaneously placed under a shutdown in a bid to stifle protests and dissent, while several politicians were put under house arrest that continue.
The petitioners, including Kashmir Times newspaper, Anuradha Bhasin and Congress leader Ghulam Nabi Azad, said the restrictions were in violation of their fundamental right to speech and expression and the right to move freely under Article 19 of the Constitution.
Solicitor general Tushar Mehta, appearing for Jammu and Kashmir, told the court that misuse of social media and internet by separatists and Pakistani military and political leaders necessitated curbs on internet.
While maintaining that there were no restrictions across the entire state, Mehta underscored that tweets and trending hashtags on social media by “mischievous elements” justified the restrictions.
In its 130-page ruling, the top court held that freedom of speech and expression and freedom to carry on trade or profession through internet is a fundamental right under Article 19 of the Constitution and any order suspending internet under Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 (Suspension Rules) can be only for a temporary duration and not for an indefinite period.
Such orders should indicate the reasons for the necessity of such shutdown specifically stating the “unavoidable circumstance” requiring such a measure and it should be in accordance with Article 19(2) and 19(6) of the Constitution which empowers states to impose restriction on freedom of speech and freedom to practice trade and profession. Such orders, the court directed, should be published and will be subject to judicial review.
“The reasoning of the authorised officer should not only indicate the necessity of the measure but also what the “unavoidable” circumstance was”, the judgment said.
The court also stated that complete suspension of telecom and internet services was a drastic measure and should be considered by the state only if unavoidable and necessary. The state must assess an alternate and less intrusive remedy, the order said.
“The judgment is a very timely message to the executive where we are seeing that curbing freedom of assembly, movement and speech is becoming the default way in dealing with citizens’ protests or apprehensions,” said advocate Vrinda Grover, who represented lawyer Anuradha Bhasin.
Experts said the order, however, did not determine the legality of internet shutdown in Kashmir. “While the judgment is actually positive it does not actually provide a clear push back against several government actions. It requires the government to relook its orders rather than the court itself conducting a judicial review,” said Apar Gupta, executive director of Internet Freedom Foundation (IFF).
Government lawyers did not respond to requests for a comment.
The Kerala High Court on September 19, 2019 too held ‘Right to Internet Access’ as a fundamental right. The court said access to internet becomes the part of right to education as well as right to privacy under Article 21 of the Constitution of India.
The SC bench also called for a revamp of suspension rules, which, they said neither provided for a periodic review nor a time limitation for restrictions. Till this is remedied, the judges said, the review committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review of orders suspending internet within seven working days of the previous review.
Besides curbs on internet, the Supreme Court also put riders on the scope of orders issued under Section 144 of the Code of Criminal Procedure (CrPC), a provision which enables district magistrate to impose restrictions on movement and assembly in public.
The court held that repetitively invoking Section 144 will amount to an abuse of power. The magistrate, the court ruled, when exercising powers under Section 144, is duty-bound to balance the rights of individuals and restrictions in the larger societal interest and thereafter, apply the least intrusive measure. Such orders, the ruling added, should be passed by relying on material facts, indicative of application of mind.
“The power under Section 144, the court ruled cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights”, the judgment said.
The central government, in arguments before the apex court, sought to justify orders under Section 144 on the grounds of national security and law and order.
The court ruled that ‘law and order’, ‘public order’ and ‘security of State’ are distinct legal standards and the magistrate must tailor the restrictions depending on the nature of the situation.
“If two families quarrel over irrigation water, it might breach law and order, but in a situation where two communities fight over the same, it might transcend into a public order situation. The magistrate cannot apply a straightjacketed formula without assessing the gravity of the prevailing circumstance…” the judgment said.
Meanwhile, the Jammu and Kashmir home department has revoked the stringent Public Safety Act against 26 people who are lodged in various jails in the newly carved out Union territory, news agency PTI quoted officials as saying on Friday.
This is seen as an attempt by the Union territory administration to ease the situation in the region.
These people were picked up and booked under the PSA after the Centre’s decision on August 5 last year to revoke special status of the erstwhile state of Jammu and Kashmir and bifurcate it into two Union territories.