OVERVIEW
FACTS:
- The issue starts with the security advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir stating to cut short their stay and make their safe arrangements to go back.
- Subsequently, educational institutions and offices were also shut down until further orders. On August 4, 2019 internet services, mobile connectivity and landline were shut down until further orders.
- On August 5, 2019, the Constitutional Order No. 272 was passed by the President of India applying all provisions of the Constitution of India to Jammu and Kashmir and stripped it from special status enjoyed since 1954. On the same day, due to prevailing circumstances, the District Magistrate passed the order restricting the movement and public gathering, apprehending breach of peace and tranquility under Section 144 of CrPC.
- Due to this, journalist movements were restricted and this was challenged under Article 19 of the Constitution which guarantees freedom of speech and expression and freedom to carry any trade or occupation.
- In this context, in the Supreme Court, legality of internet shutdown and movement restrictions are challenged under Article 32 of the Constitution.
ISSUES RAISED:
The main issues raised by the Apex court were –
- Whether the Government claim exemption from producing all orders under Section 144 of CRPC?
- Whether the practice of Article 19(1)(a) and Article 19(1)(g) of the Constitution of India over the internet constitutes a fundamental right?
- Whether the exercise of Prohibiting internet service by the Government valid?
- Whether the imposition of restrictions under Section 144 of CRPC valid?
- Whether the Freedom of the Press of the petitioner violated due to the restrictions imposed on the State?
ARGUMENTS:
Petitioner’s Arguments:
- It was contended that print media had stopped functioning which is a very important aspect of modern press due to non-availability of internet and also the petitioner had not been able to work post 05/08/2019 due to the various restrictions imposed.
- The petitioner requested for a test of “reasonableness and proportionality” since it is necessary for any law curbing the rights of speech and expression to pass the aforementioned test.
- The Indefinite restriction on telecom services was arbitrary and contrary to Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 where it was contemplated that the restrictions Imposed on telecom services would be of temporary nature and therefore asserted that there was non-application of mind and also no reasoning justifying the restrictions was given as is required under the suspension rules.
- The situation at the time when the orders were passed did not warrant the passing of the orders resulting in restrictions.
Respondents’ Arguments:
- It was contended that the measures taken were taken in consideration of the high frequency of internal militancy and cross-border terrorism in the state of Jammu and Kashmir.
- The restrictions Imposed are for ensuring safety of citizens based on ground reports and the facts of petitioners were incorrect.
- Internet is very fast and useful for communication from both the sides unlike newspaper and can be used to spread fake messages and incite violence and has been used for such purposes many times already even before the abrogation of article 370.
- Restrictions were being put on the basis of threat perception and were being relaxed where they were not required such as in Ladakh and other regions of Jammu where restrictions were not imposed, proving that the suspension rules were not imposed without application of mind.
JUDGEMENT/ ANALYSIS
Regarding the first issue, the court held that the state was obligated to produce the orders before the court. Due to non-compliance of the state with the court’s directions it expressed its impediment in determining the validity of the restrictions imposed by the state. With regards to the state’s obligation to disclose information, the court cited the case of Ram Jethmalani vs. Union of India, where the court held that concerning Article 32 to be meaningful and the petitions seeking to protect fundamental rights the petitioners should not be denied access to the relevant information, to articulate their case and be heard, especially when the state possesses such information.
The court provided reasons that mandated them to order the production of the orders and notifications passed by the state authorities.
- First, the court stressed on the interpretation of Article 19 of the Constitution and observed that it mandates right to information as an important facet of right to free speech and expression. It further stated that A democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of the individual to know.
- Second, the court held that the democracy encourages free flow of information. As per the requisites of natural law, no law should be passed in a clandestine manner.
The court opined that internet usage substituted the limitation of storage and accessibility of print media. The court stated that, Law and Technology mix like oil and water. In the case of Indian Express vs. Union of India wherein the court had held that the freedom of expression also includes freedom of print media. The court in several other judgements has recognized the freedom of speech as a fundamental right, but as technology evolved, it has also recognized freedom of speech and expression over various medias of expression.
Thus, it was held that freedom of speech and expression through internet is an integral part of Article 19(1)(a) and any restriction on it must be in accordance with Article 19(2). The court didn’t give any view on right to access internet as a fundamental right as none of the counsels argued with regards to the same.
To examine whether the imposed prohibition was least intrusive the court relied upon the doctrine of balancing and proportionality. The court briefly discussed the situation in the region previously. Further the court opined, the Government can impose reasonable restrictions on freedom of speech and expression under Article 19(1)(a) in consonance with Article 19(2) if it is needed to do so.
In the case of CPIO vs. Subhash Chandra Agarwal, where the meaning of proportionality was explained- “Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law…”
The court also stated the observation made in K.S. Puttaswamy vs. Union of India, where it held-
“ Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law…”
The court emphasized more on the procedural aspect of the law rather than substantive. It observed that procedural justice cannot be sacrificed on altar of substantive justice. Further it noted that the procedural mechanism put forth for scrutinizing restrictions on the internet was twofold:
- first being, contractual, i.e., a contract signed between Internet Service Providers and the Government.
- Second, of a statutory nature under the Information Technology Act, 2000, the Criminal Procedure Code, 1973 along with the Telegraph Act.
However, the court confined discussion to only the statutory schemes laid down in the laws stated above, specifically concerning the Telegraph Act. The court observed that Section 69A of the Information Technology Act read with Information (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 allows blocking of access to information. Although the court upheld its constitutional validity in Shreya Singhal vs. Union of India it noted that section didn’t aim to block the internet access completely thus, having a limited scope.
The court observed that Section 144 CrPC provided with mechanism to ‘maintain public peace’ in the state. It confers the state with the responsibility to take preventive measures against imminent threats to public peace. It bestows the magistrate with certain powers to issue orders and undertake appropriate actions in the situation as required. To substantiate its observation the court relied on some cases decided earlier on the validity of Section 144.
For instance, in the case of Gulam Abbas vs. State of Uttar Pradesh held that an order passed under section 144 CrPC. is an executive order which can be questioned in exercise of writ Jurisdiction under Article 226.
Lastly, the court refuted the petitioner’s argument that she was unable to publish the news paper from 6 August to 11 October 2019 as there was no evidence furnished that such other individuals were also restricted from publishing newspapers in the area. Therefore, it is difficult to differentiate between a legitimate claim of doctrine of chilling effect from that of mere emotive argument for self-serving purpose.
Therefore, the court in the present case decided as follows on the issues posed. The competent state authorities were directed to publish all the orders which were enforced in consonance with Section 144 CrPC. for suspension of telecom and internet services. Further it ordered the state authorities to ensure that the aggrieved persons are enabled to approach the High courts and appropriate forums challenge such orders and notifications.
The court also declared that the freedom of speech and expression and to practice any profession or carry on any trade, business or occupation under Article 19(1)(a) and Article 19(1)(g) respectively enjoys constitutional protection. And the restrictions upon the fundamental rights should be in accordance with the mandate under Articles 19(2) and 19(6) including the test of proportionality.
In addition to this it was held that any order suspending the internet services indefinitely under the Suspension Rules, 2017 was impermissible and such orders if passed under the suspension rules must adhere to the doctrine of proportionality. Such orders are also subject to judicial review.
The court directed the state authorities to review the suspension orders which were passed and to revoke such orders which didn’t comply with the law as put forth in the present case. Also, in situations where there was a need to frame new orders were to be framed according to the law laid down. In areas, where immediate restoration of internet services was not possible, the authorities were to oversee that people are provided access to government websites, hospital services and other essential services. With respect to imposition of Section 144 CRPC it was held that the impugned section was preventive as well as remedial and thus it could be applied where ‘there exists a present danger’ as well as an apprehension of danger.
The nature of danger should be of an “emergency”. The power vested under the section can’t be used to suppress legitimate expression of opinions or democratic rights. The Magistrate must consider the rights and restrictions based on the doctrine of proportionality and accordingly apply the least intrusive measures. Orders passed under Section 144 CrPC must provide a brief about material facts to conduct a judicial review of the same and such orders must be issued with a Bonafide and reasonable manner. Thus, it was observed repetitive orders issued under Section 144 CrPC would be construed as abuse of power.
CONCLUSION
Internet is an important part of our daily life in today’s world. We are very much dependent on the internet for a lot of things including trade and business. It can be concluded that Internet has become so important that it is being included in Part III of the Indian Constitution. This judgement is very significant because the primary aim of the case was to judge the legality of the restriction of internet facilities. The Apex Court had also introduced a number of principles that would prevent undue misuse of the powers provided to the Government, especially in such cases.
