Kashmir Internet Shutdown: Supreme Court Says Freedom Of Speech, Business On Internet A Fundamental Right

The Supreme Court ordered all e-banking, hospital services and government websites in Kashmir to be restored immediately.

A member of the security forces walks past shuttered stores in Srinagar, Jammu and Kashmir. (Photographer: Anindito Mukherjee/Bloomberg)
A member of the security forces walks past shuttered stores in Srinagar, Jammu and Kashmir. (Photographer: Anindito Mukherjee/Bloomberg)

The Supreme Court on Friday ruled that the freedom of speech and expression and the right to carry on any trade or business using the internet, is constitutionally protected. The apex court also directed the Jammu & Kashmir authorities to immediately restore internet services in all institutions providing essential services, including hospitals and banks.

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) respectively, ruled the three-judge bench headed by Justice NV Ramana. “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 court said.

The verdict came on a batch of pleas which had challenged curbs imposed in Jammu & Kashmir after the Narendra Modi government’s abrogation of provisions of Article 370 on Aug. 5, 2019. These batch of pleas were different from another set of petitions which challenge constitutional validity of abrogation of Article 370, being heard by a five-judge Constitution bench.

The apex court also ruled that repetitive orders under Section 144 of the Criminal Procedure Code amount to an abuse of power.

The power under Section 144, CrPC cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
Supreme Court Order 

The Supreme Court in its judgment dealt with the process that governs internet shutdowns and restrictions imposed under Section 144 of the Code of Criminal Procedure.

On internet shutdowns, the court made it clear that all the orders which lead to an internet shutdown must be put out in public domain. The top court also made it clear that there cannot be an indefinite extension of internet shutdown orders.

“The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what’s actually necessary to combat an emergent situation,’’ said the judgement by the top court bench headed by Justice Ramana.

The bench has also asked the administration in Jammu and Kashmir to review all shutdown orders within seven days as mandated under the rules.

It’s clear from the reading of the judgment that the court has found the current shutdown imposed in Kashmir to be unconstitutional, Raman Cheema, an advocate practising cyber law, told BloombergQuint.

Agreed Vrinda Bhandari, an advocate specialising in technology and privacy. The court’s direction for making public all orders imposing internet shutdown is a leap forward as it makes such orders easier to be challenged in court by those who are aggrieved by them, she told BloombergQuint.

The court has made it clear that the constitutional principles of necessity, proportionality and the need to first look for alternate means will apply in cases of internet shutdown orders as well. For people in places where the shutdown is still in effect, the judgment now enables them to approach the government seeking a copy of the order and then they can challenge these shutdowns in the High Courts.
Raman Cheema, Advocate Practising Cyber Law

The bench also noted that this was a case where the two sides presented two pictures “which are diametrically opposite and factually irreconcilable” and the court has tried to balance the question of restrictions on grounds of national security and the freedom and rights of citizens.

There’s merit in the argument of security concerns, the bench said, while mandating that the citizens must be provided access to essential services, including access to government websites, hospital services and banking services through the internet.

But the judgment makes it clear that even shutdowns imposed on grounds of national security will be subject to judicial review, Bhandari said.

The restrictions imposed under Section 144 of the CrPC—which grants powers to magistrates to issue orders to maintain law and order—must be used as a last resort to maintain law and order, it said. The magistrate can issue orders to take preventive measures to disallow unlawful assembly—which can refer to any gathering of more than five people who have a common object to use criminal force against the central or state governments.

The court also explained the process that must be followed before issuing orders under the section.

“In a situation where fundamental rights of the citizens are being curtailed, the same cannot be done through an arbitrary exercise of power; rather it should be based on objective facts. The preventive/remedial measures under Section 144, CrPC should be based on the type of exigency, extent of territoriality, nature of restriction and duration of the same,” the top court judgment said.

Vrinda said the judgment will give cautious optimism to those who have challenged these orders in the courts.

Currently, high courts in India are hearing petitions challenging internet shutdown orders and restrictions imposed under Section 144 CrPC in the context of recent protests witnessed across the country. The Karnataka High Court is hearing a challenge to Section 144 orders issued in the southern state during the protests against the Citizenship Amendment Act. The Allahabad High Court is also hearing a suo motu petition challenging internet restrictions imposed during the anti-CAA protests in the state.

“The court’s ruling on Section144 is even more progressive,” Bhandari said. “The court here has made it clear that before issuing orders under the section, there has to be an assessment on whether any other less intrusive measures can be taken to control law and order. The judgment is a huge step forward in ensuring more accountability and transparency to deal with these issues.”