SC judgement on internet shutdown

Syllabus subtopic: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Prelims and Mains focus: About the SC judgement on internet curbs in the valley and its significance; about Article 370

News: The right to internet is protected by the constitution and the Centre should review the sweeping restrictions it has placed on internet access in Kashmir, the Supreme Court ruled on Friday in a landmark judgement.

About the SC judgement

• While recognizing the right of the government to impose internet bans in exceptional circumstances, it questioned the extent of the clampdowns. It drew these conclusions by recognizing that the right to internet is constitutionally protected.

• The court gave the central government and “competent authorities” a week to complete the review into the clampdown that was imposed on the eve of the 5 August revocation of Article 370 that gave the erstwhile state its special status.

• The court also directed the Centre to publish all prohibitory orders in force, future orders under Section 144 of the CrPC and orders suspending telecom services, including the internet, so that affected citizens can challenge them in the high court or another appropriate forum.

• The SC declared that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.

• The SC said that the power under Section 144 Criminal Procedure Code, being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. The power under Section 144 cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.

• An order passed under Section 144, CrPC should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order. Repetitive orders under Section 144, CrPC would be an abuse of power.

What does the research on internet shutdown say?

• Around 4,196 hours of internet blackouts in India cost the economy close to $1.3 billion in 2019, said a 7 January report by UK-based research firm Top10VPN.

• The report analysed every major internet shutdown around the world in 2019 which cost the global economy over $8 billion. India, where over 100 shutdowns were documented, was the third worst-hit after Iraq and Sudan.

• The findings for India are based on internet blackouts in Arunachal Pradesh, Assam, Jammu and Kashmir, Meghalaya, Rajasthan, Tripura and Uttar Pradesh.

Why SC order on Internet goes beyond J&K?

• Directing the government to mandatorily publish all orders permitting Internet shutdowns, the Supreme Court has for the first time set the stage for challenging suspension orders before courts.

• Although the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 issued under the Telegraph Act — the law that deals with restricting Internet access — does not provide for publication or notification of the order suspending Internet, the apex court mandated that such orders must be made available to the public.

• The court declared that it is a “settled principle of law, and of natural justice” that requires publication of such orders, “particularly one that affects lives, liberty and property of people”. “Any law which demands compliance of the people requires to be notified directly and reliably,” it said.

• This allows individuals to now challenge the orders before courts in J&K and rest of India. In the wake of protests against the new citizenship law, Internet services were suspended temporarily in parts of Uttar Pradesh, Delhi and Karnataka. While suspension orders were always subject to judicial review, lack of availability of such orders in public domain prevented such challenges before courts.

• In December last year, the Gauhati High Court directed the Assam government to restore Internet in the state after reviewing suspension orders.

• India tops the list of Internet shutdowns globally. According to Software Freedom Law Center’s tracker, there have been 381 shutdowns since 2012, 106 of which were in 2019. The ongoing shutdown in Kashmir is the longest ever in any democratic country.

• The Supreme Court also highlighted ‘gaps’ in the current Suspension Rules. In favour of the petitioners, the court tightened the window for broad telecom suspensions, stating they had to be “necessary” and “unavoidable”.

• While the Solicitor General had argued during the proceedings that blocking only some social media services was not feasible, the Court responded that “the State should have attempted to determine the feasibility of such a measure” and “if such a contention is accepted, then the Government would have a free pass to put a complete internet blockage every time. Such complete blocking/prohibition perpetually cannot be accepted by this Court”.

• There should not be excessive burden on free speech even if complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain why lesser alternatives will be inadequate, the bench stated.

• Lastly, the court mandated that all orders regarding the Kashmir case be made public, and to provide essential services such as e-banking and hospitals immediately..

• Once these orders have been reviewed, they are open to be challenged by everybody and can be subject to judicial review. What the state was arguing in this case was that this is a matter of national security given that it pertains to Kashmir with a history of militancy. They said, therefore leave it to the state, armed forces, and security forces to determine what restrictions need to be imposed, and the court should not be reviewing these orders. On that aspect, the court has come down very clearly to say that it will judicially review executive orders.

• This was an unprecedented court recognition of the new important mediums of expression and trade.

• The bench also noted that the law needs to keep pace with technological development: “We need to note that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society. Non-recognition of technology within the sphere of law is only a disservice to the inevitable.”