SC judgment – Safeguards for shutdown, limited relief for Kashmir

The Supreme Court pronounced judgment in Anuradha Bhasin v UoI [WP(C) 1031/2019] and Gulam Nabi Azad v UoI [WP(C) 1164/2019] on January 10, 2020. The judgment has laid down the law on the issue of Internet shutdowns.

Case in brief:

Mobile and broadband Internet services were suspended in Jammu and Kashmir on August 4, 2019 prior to the repealing of Article 370 of the Constitution of India. A petition was moved by Anuradha Basin, the executive editor of Kashmir Times. This petition challenged the curbing of media freedom in the state. The petition claimed that the media in the erstwhile state cannot practice their profession owing to the internet as well as telecommunications shutdown in the state. A similar petition was moved by Gulam Nabi Azad seeking issuance of an appropriate writ to set aside, quash any orders, notifications, directions or circulars issued by Government of India under which all/any modes of communication have been shut down. Further an appropriate writ was asked to be issued which would immediately restore all modes of communication including mobile, internet and landline services throughout the state. so that the media could practice its profession

Issues:

The Main issues framed by the Apex court were -

• Could the Government claim exemption from producing all orders under Section 144 of CRPC?

• Does Practice of Article 19(1)(a) and Article 19(1)(g) of the Constitution of India over the internet constitutes a fundamental right?

• Is the exercise of Prohibiting internet service by the Government valid?

• Were the imposition of restrictions under Section 144 of CRPC valid?

• Was the Freedom of the Press of petitioner(Anuradha Bhasin) violated due the restrictions imposed on the State?

What the Court held?

1. Access to the Internet and exercise of fundamental rights: The Court did not express any view on declaring the right to access the Internet as a fundamental right as this was not canvassed by the counsel for the petitioners. However, the Court held that “the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected”. This declaration would entail that any curtailment of internet access have to be reasonable and within the boundaries laid down by Art. 19(2) and 19(6) of the Constitution.

2. Orders to be published: The apex court directed that all orders under S.144 of Cr.P.C as well as under the Telecom Suspension Rules have to be published. The Court held that although the Suspension Rules does not provide for publication or notification of the orders, a settled principle of law, and of natural justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available. This will go a long way in ensuring that the suspension orders can be challenged under Art.226 of the Constitution before the concerned High Courts. Many applications under the RTI Act filed by SFLC.in were rejected by the authorities in various states, including the state of Jammu and Kashmir, citing national security as a reason.

3. Reasoned order to be passed: The Court held that Rule 2(2) of the Telecom Suspension Rules, 2017 requires every order passed by the competent authority to be a reasoned order. The Court further held that if an authorized officer is passing the order in unavoidable circumstances, the officer should indicate the necessity of the measure as well as the “unavoidable” circumstance necessitating his passing such an order.

4. Proportionality principle: The Court held that any curtailment of fundamental rights should be proportional and that the least restrictive measures should be resorted by the State. Although the state opposed selective access to internet services based on lack of technology, the Court held that if such a contention is accepted, then the Government would have a free pass to put a complete internet blockage every time and that such complete blocking/prohibition perpetually cannot be accepted. The Court further held that complete broad suspension of Telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’ and that the State must assess the existence of an alternate less intrusive remedy.

5. Suspension to be temporary in nature: The Court held that suspending internet services indefinitely is impermissible. It directed that the review committee must meet within 7 days of the previous review and look into compliance with requirements of Section 5(2) of the Telegraph Act as well as the proportionality of orders.

6. Orders under Section 144 of Cr.P.C to state material facts: The court held that power under Section 144 of CRPC is remedial as well as preventive and can be exercised when there is both a present danger as well as apprehension of danger. The danger should be in the nature of Emergency. Further, Section 144 cannot be used to suppress expression of opinion. Any order passed under Section 144 should state material facts to enable judicial review. The Court further stressed that principles of proportionality should be used and the least intrusive measure applied. The Court held that there shouldn't be repetitive use of Section 144 as well as it would amount to abuse of power.

Relief for the aggrieved

The contentions advanced by the respondents regarding terrorists threat and law and order seems to have swayed the court as the extensive treatise on proportionality in the judgment was not applied in the case of the prolonged shutdown in Kashmir. Although the Court held that suspending internet services indefinitely is impermissible, this was not applied to the shutdown in Kashmir that has been continuing for more than 5 months. The only relief granted was a direction given to the State review all orders suspending internet services forthwith. A further direction was given to allow government websites, localized/limited e-­banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.

Looking forward

The positive aspect of the judgment is that the Apex Court has laid down the law on Internet shutdowns with emphasis on proportionality and reasonableness. The need to issue reasoned orders along with the mandate to make all orders public could result in reduction of arbitrary shutdowns. Removing the veil of secrecy from shutdowns itself could help in reducing the number of shutdowns. The Kerala High Court Judgment talks about Right to Education and Right to Privacy. These rights are not considered in the Judgment. The number of shutdowns in 2020 would determine whether this judgment has helped in protecting the rights of the citizens.