Court: The Supreme Court of India
Citation: 2020 SCC OnLine SC 25
Bench: Justice N.V. Ramana, Justice R. Subhash Reddy and Justice B.RGavai
Theme: Freedom of Speech & Expression and Internet Shutdown in Kashmir.
Subject: Constitutional law
FACTS OF THE CASE
The genesis of the issue starts with the suspension of mobile, landline and internet services in the state of Jammu and Kashmir (hereinafter ‘J&K’) on August 4, 2019 along with restrictions on movement in certain areas. On August 5, 2019, Indian government issued Constitutional Order 272 i.e. Constitution (Application of Jammu and Kashmir) Order, 2019 by virtue of which special category status of J&K was revoked. In light of these circumstances Section 144 was imposed on the apprehension of breach of peace and tranquility in the state. The petitioner Ms. Anuradha Bhasin, the executive editor of Kashmir Time challenged the internet shutdown and movement restrictions (hereafter ‘restrictions’) for being voilative for right to freedom of press and profession enshrined under Article 19 of the Indian Constitution. A similar petition was filed by Ghulam Nabi Azad seeking issuance of an appropriate writ to set aside or quash any orders, notifications, directions or circulars issued by the Government under which all/any modes of communication have been shut down. Furthermore, petitioners sought to issue an appropriate writ directing respondents to immediately restore all modes of communication in order to provide an enabling environment for the media to practice their profession by taking necessary steps for ensuring their free and safe movement of reporters and journalists to so they can exercise their right to freedom of speech and expression and right to movement. The two petitions were combined and the matter was listed for the final disposal after hearing counsels and interveners from both the sides and taking into due consideration the submissions and documents placed before the court.
ISSUES AT HAND
- Whether the government can claim exemption from producing all the orders passed under Section 144 of the CrPC and under Suspension Rules?
- Whether the freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Indian Constitution?
- Whether the action of government in prohibiting the access to internet valid?
- Whether the imposition of restriction under Section 144 of CrPC valid?
- Whether the freedom of press of the petitioner was violated due to the restriction?
Contentions on the behalf of Petitioners (Represented by Ms. Vrinda Goyal, Senior Counsel Mr. Kapil Sibbal)
- The restrictions do not satisfy the test of ‘reasonableness and proportionality’ to the aim pursued by them.
- The restrictions imposed by virtue of Section 144 were passed on the apprehension that there is an imminent threat to law and order situation in the valley which was not the case as public order is not same as law and order and neither were at risk.
- The State’s order of restricting internet services under the Suspension rules was not in compliance with the requisite procedure, implying the absolute non- application of mind.
- The restrictions are overbroad and excessive in nature as the state failed to put least restrictive measures in place which deprive people from the lawful exercise of their fundamental rights.
Contentions on the behalf of Intervenors (Represented by Senior Counsels Mr. Huzefa Ahmadi and Mr. Dushyant Dave and Ms. Meenakshi Arora)
- The restrictions should be reasonable as provided in Article 19 (2) of the Constitution and must satisfy the test of proportionality and necessity.
- While looking at the proportionality of the restrictions, the effect of such restrictions on fundamental rights, not just the legal and physical but also the fear that those sorts of restrictions endanger in the minds of the populace should be considered.
- A balancemust be strike between the measures undertaken in the name of national security and curbing terrorism and fundamental rights and liberties of the citizens. In the above context it would be too overbroad to give state a carte blanche to restrict fundamental rights.
- The restrictions censored the discussion and right to know of J&K citizens about the constitutional amendment abrogating the special category status of the state.
- The restrictions under Suspension Rules were supposedly temporary in nature, which in the present case lasted for over 100 days, hence unreasonable.
Contentions of the behalf of the Respondent (Represented by Mr. K.K Venugopal, Learned Attorney
General of India and Mr. Tushar Mehta, Solicitor General for the State of Jammu and Kashmir.
1. The restrictions were ‘necessary’ to prevent terrorist activities, taking into consideration the situation regarding cross- border terrorism and internal militancy. Even before Article 370 was revoked it was a subject of speculation.
2. Since the issue of national security is at stake, courts have limited jurisdictions to question the judgment of the officers in imposing pre-emptive measures.
3. There was never a blanket ban on internet services as internet services were not restricted in regions like Jammu and Ladakh.
4. The effects of the restrictions have been exaggerated by the petitioners as the individual movement had never been restricted and were imposed only in certain areas which were relaxed soon after.
5. The free speech standards related to the newspapers are not very distinct from those of internet and hence it is not possible to ban only certain websites or parts of internet while allowing access to others.
The Hon’ble Court began by stating that in the light of facts of this case, the objective of this Court is to strike a balance between the liberty of citizens and security concerns so that the right to life and personal liberty is secured and enjoyed in the best possible manner and leave the propriety of the orders at issue for “democratic forces to act on”.
The five issues were analyzed by the Court in five sections as:
Issue I: The Court held that the State has to produce the orders imposing the restrictions as it becomes extremely difficult for the Court to determine the legality of the restrictions in the absence of such orders. It is obligatory for states to disclose such information in order to satisfy the Court that a right to remedy exists under Article 32 of the Indian Constitution. The Court placed reliance on various landmark judgments to reiterate that right to freedom of speech and expression under Article 19 includes right to information as an important aspect of it. The Court added that, “a democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know.” The importance attached to fundamental rights mandates a state to act responsibly in protecting them for which no law should be passed in discreet merely on the basis of apprehension of danger. Therefore, state should ensure to inform its citizens of any law which restricts their freedom, unless a countervailing public interest prevails. However, even in such cases the Court would weigh the privileges of State against right to information and decide what portions of the order could be hidden or redacted. In the present case, the contention of state that order could not be released because of unspecified difficulties without any substantial evidence was not taken to be a valid justification.
Therefore, no exemption was granted to State from producing all the orders passed under Section 144 of the CrPC and under Suspension Rules
Issue II: The Court firstly reiterated that freedom of expression guaranteed under Article 19 extends to the internet, for which the Court recalled its extensive jurisprudence that extended protection to various new mediums for expression and held that even though the use of internet is constitutionally protected under article 19, they are subject to certain ‘reasonable restrictions’. The Court however did not go into the aspect of discussing the right to access of internet as fundamental right as none of the parties raised this issue. By reviewing its jurisprudence on the application of 19 (2), the Court held that restrictions could impose complete prohibitions. Whether restrictions amount a complete prohibitions is a question of fact to be determined by court on case to case basis. While taking into consideration the fact that terrorists are actively using internet to disseminate false information and propaganda, raise funds etc. However, the contention of Indian authorities that war on terrorism required imposition of restriction so as to curb it from its roots was not accepted by the court as it was unlike territorial fights and transgressed into other forms affecting normal life, thus it could not be treated as a law and order situation.
Therefore, it was held that the freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Indian Constitution.
Issue III: The Court focused largely on the provisions of Telegraph Act, 1885 due to its direct application. Section 5 (2) of the Act permits the suspension of internet services only in the situations of public emergency or in the interest of public safety. As these terms have not been defined in the Act itself, Court looked for its definition in various international instruments and concluded that a situation of public emergency is required to be of a serious nature and needs to be determined on a case to case basis. Furthermore, the court held that Rule 2 (2) of the Suspension Rules, 2017 requires every such order to be a reasoned order which must indicate that a complete suspension of telecom serviced, be it internet or otherwise, being a drastic step is the necessity of the hour which is unavoidable. In furtherance of same the Court stressed on the ‘principle of proportionality’ and held that any curtailment of fundamental right should be proportional and that the least restrictive methods should be imposed by the state so as to achieve the object of the legislation or any administrative order. Rejecting the State’s contention of being unable to block selective access due to technological reasons, the Court held that if such a contention is accepted then a free permit would be given to complete blockage of internet every single time which is perpetually unacceptable. Nonetheless, considering the principle of proportionality the court indefinite suspension is impermissible. Since the Suspension Rules were silent on the length of a permissible shutdown, the Court found that it was up to the Review Committee to determine its duration and to ensure that it would not extend beyond a period which was necessary.
Therefore the action of government in prohibiting the access to internet was held to be invalid.
Issue IV: The Court emphasized on various judicial pronouncements to reiterate that restrictions under Section 144 are remedial as well as preventive in nature and can be exercised both in ‘situation of danger’ or when there is an ‘apprehension of danger’. The Court noted that the orders passed under Section 144 have direct consequences upon the fundamental rights of the public in general and using such a power in a casual way would result in severe illegality. Thus, it is imperative for State to produce material facts necessitating the passing of such orders to judicial scrutiny and verification of the order’s legitimacy. The Court stated that it cannot ignore noncompliance with the law in this case, as the issue at hand is not just about what happened in Jammu and Kashmir but also about imposing a check on the State. It further reiterated that the key consideration is the perceived imminence of the threat and whether invoking Section 144 was the proper remedy to prevent potential harm. Furthermore, the court stressed upon the use of the test of proportionality and the least intrusive method should be imposed.
Therefore, the imposition of restriction under Section 144 of CrPC was held to be unjustified.
Issue V: The Court held that though freedom of press has been recognized in India long back, it is subject to reasonable restrictions. The petitioners in the present case failed to prove that restrictions restricted the publishing of newspapers in the State or to challenge the state argument that newspapers were published as well as distributed during the communication and movement lockdown. Moreover, now when the petitioner has resumed publication the Court simply advised the responsible State governments to respect the freedom of press. However the court concluded by rejecting the petitioner’s arguments that the restrictions on movement and communication imposed in Jammu and Kashmir directly curtailed freedom of the press and journalists’ ability to perform their professional duties.
Therefore, it was held that the freedom of press of the petitioner was not violated due to the restriction imposed.
OUTCOME OF THE JUDGMENT
The Contentions advanced by the respondents regarding terrorist attacks and law and order situation seems to have swayed the court as the extensive treatise on proportionality in the judgment was not applied in the case of prolonged shutdown in Kashmir. Although the Court held that suspending internet services indefinitely is impermissible, the same was not made applicable to situation in Kashmir where it has been continuing for more than 5 months. The only relief granted was a direction given to the State to review all orders suspending internet services forthwith. A further direction was given to allow government websites, banking facilities, hospitals services and other essential services in those regions, wherein the internet services are not likely to be restored immediately. The Court thoroughly outlined the principled and tests to strike a balance between the concepts of fundamental rights and national security. Just as importantly, Court stressed that orders that impact fundamental rights such as freedom of expression cannot be passed arbitrarily and in secret.
SIGNIFICANCE OF THE CASE
The judgment establishes a binding precedent as the decision was pronounced by a three judge bench of the Supreme Court unless overruled by a larger bench.
Looking at an increasing numbers of internet shutdowns in the recent times, the judgment fairly laid down the law on internet shutdowns with a great emphasis being laid on the principles of proportionality, necessity and reasonableness. In addition to that court stressed upon the citizens right to know about the actions of the government and striking a balance between the liberties of citizens and national security. In my opinion the judgment propounded the principle of proportionality and reasonableness and talked about it in detail but the relief provided is not as to what was expected considering the fact that blanket ban on internet services has been catastrophic to the economy of the State, crushing innovation in the region and leading to a mass exodus of young people in search of new jobs. Just because shutting the internet is the easiest thing do to, government should not resort to use such means arbitrarily but rather deal with it through democratic means which do not impair the basic fundamental rights of the citizens. Also the author feels that two important aspect were not covered in this case which are firstly, access to internet as a fundamental right and secondly, constitutionality of the suspension rule, but some day, as the technology is changing rapidly, the author looks forward that these issues would come into consideration in the Court to develop laws around these two critical points. Whether this judgment has helped in protecting the rights of the citizens would be determined by the number of shutdown in 2020.
Ram Jethmalani v. Union of India, (2011) 8 SCC 1.
Indian Express Newspaper (Bombay) Pvt. Ltd v. Union of India, (1985) 2 SCR 287; Sakal Papers Ltd. v. Union of India, (1962) 3 SCR 842; Romesh Thappar v. State of Madras, (1950) SCR 594.
Shreya Singhal v. Union of India, (2015) 5 SCC 1; Secretary, Ministry of Information & Broadcasting Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161; Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatan, (1988) 3 SCC 410.
UN General Assembly, ‘International Covenant on Civil and Political Rights’, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org/docid/3ae6b3aa0.html [accessed 4 April 2020], art.4; Council of Europe, ‘European Convention for the Protection of Human Rights and Fundamental Freedoms’, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at: https://www.refworld.org/docid/3ae6b3b04.html [accessed 4 April 2020] art.15.
Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353; Om Kumar v. Union of India, (2001) 2 SCC 386; State of Bihar v. Kamal Kant Misra, (1969) 3 SCC 337; Dayal Chandra Mohan v. State of Uttar Pradesh, (1982) 1 SCC 39.
Acharya Jagdishwaranand Avadhuta v. Commr. of Police, Calcutta, (1983) 4 SCC 522; Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740; Madhu Limaye v. Sub- Divisional Magistrate, Monghgyr, (1970) 3 SCC 746; Babulal Parate v. State of Bombay, AIR 1960 SC 51; Re- Ramlila Maidan v. Home Secretary, (2012) 5 SCC 1.
Channing Arnold v. The Emperor, (1914) 16 Bom LR 544; Bennet and Coleman & Co. v. Union of India, (1973) 2 SCR 757; Union of India v. Association for Democratic Reforms, (2002) 5 SCR 294.