Prachurya Sahu | Symbiosis Law School, Pune | 16th June, 2020.
Introduction
An invention of the printing press five hundred years ago carried the beacon of revolution within the communication sector by developing a platform where dissent and criticism could be manifested in an attempt to challenge entrenched powers. With its invention, enormous breaking down of power hierarchies and change in social dynamics ensued[1]. Today, a similar revolution is underway with the rise of the Internet which has not only allowed for easier and faster communication but also spurred a movement of solidarity and protest[2], paving the way of an informed and engaged populace. Examples of such movements are “Arab Spring,” “Sunflower Revolution,” movement, Washington’s Women’s March, “Jan Lokpal” movement and #MeToo campaign. Just as freedom of expression is unthinkable without an associated right to print and publish, similarly access to the Internet has become established as a primary delivery mechanism for a host of rights other than that of expression such as that of education, political debate and engagement, professional advancement, trade and commerce and more.
However, given the ambiguous nature of the right to access the Internet and the lack of its explicit declaration as a protected right, its violation has come to be used as a speedy measure to deal with public dissent and protest by the State in India in recent times. According to the Internet Shutdown Tracker, a portal which tracks such incidents across the country, the Internet has been shut down about 393 times since 2012[3], with the State of Jammu and Kashmir facing such action the highest number of times (186 times).
The two-fold justification put forth by the State in most cases is firstly, that such a limitation on the right to speech and expression falls within the reasonable restriction as mentioned under Article 19 and in accordance to Section 144 of the Criminal Procedure Code; Secondly, that such measures are necessary to avoid problems of law and order by violent and terrorist groups.[4] However, most of these explanation, when analysed legally, fall short of actively justifying the repetition and the extent of such violation as well as infringement of related rights such as those of education, trade and commerce etc. Before such excesses become the norm, substituting a democracy with an autocracy, it is quintessential to actively engage with the twin-questions of the legal status of the right to access the internet as well as the validity of state action in imposing such internet clampdowns callously and repeatedly.
Analysis of Anuradha Bhasin v. Union of India
Facts
The genesis of the issue starts with arbitrary suspension of mobile and Internet in Jammu and Kashmir. This was coupled with restrictions on movement being imposed in some areas. Subsequently, the Constitutional Order 272 was issued, which allowed for the application of all provisions of the Indian Constitution to the State of Jammu and Kashmir. Apprehending possible violent outcry and disturbance of peace, the District Magistrates suspended movement and public gatherings in accordance to Section 144 of the Criminal Procedure Code (CrPC). Due to such restrictions, Anuradha Bhasin was unable to publish the newspaper, Kashmir Times for which she was the editor and publisher. Furthermore, Ghulam Nabi Azad, was prevented from interacting with the people of his constituency.
Issues
- Whether the orders passed under Section 144, CrPC and the Suspension Rules can be exempted from being produced by the Government?
- Whether the freedom of expression as well as freedom of trade and commerce over the Internet could be included within the purview of fundamental rights guaranteed under Part III of the Constitution?
- Whether there was legitimate imposition of restrictions under Section 144 of the CrPC?
- Whether the restrictions imposed curbed the freedom of press of the Petitioner?
Reasoning of the Judgement
With regards to exemption claimed by the State from producing the orders that impose the restrictions, it was ruled by the Hon’ble Court that the State had a responsibility to make available all the information which it has, in order to adequately fulfil the Right to Remedy as protected under Article 32 of the Indian Constitution.[5] It was additionally noted that the fundamental right of speech and expression, included in Article 19, must be understood to implicitly include the right to information as a crucial tenet. Such an exemption can be allowed only if it is decided by the court that there is existence of a “special privilege or countervailing public interest.”[6] In the present case, it has been ruled that there are no extenuating circumstances that exempts the State from producing these orders.
Addressing the question of whether the internet clampdowns curtailed the right to freedom of speech and expression, the Hon’ble court laid down that the freedom of expression via the internet is one of the “integral” parts of Article 19(1)(a). In a number of previous judgments[7], the Hon’ble Court has upheld the exercise of the Article 19(1)(a) by means of a number of channels. In this case, it was extended to include the internet, acknowledging that online expression has become one of the “major means of information diffusion.”[8] The court also noted that the Internet plays a quintessential role in contemporary avenues of trade and commerce, and some businesses were completely dependent on it. Therefore, the freedom of trade and commerce by using the internet is within the purview of a protected right under the umbrella of Article 19.
The Hon’ble Court also noted that reasonable restrictions on rights as defined under Article 19 need to fulfil the constitutional test of proportionality. Undertaking measures interfering with or limiting the use of fundamental rights can only be justified if there exists a rational nexus between the said measures, the situation that necessitated such measures and the final object which is sought to be achieved.[9] Essentially, the measures taken must be crucial to achieve the object and must not violate on rights to a degree which is beyond what is necessary to fulfil them.
Further, the Court assessed the legality of the internet shutdowns by analysing the restrictions imposed. A number of precedents[10] have laid down that for a suspension order to be passed, there should be “public emergency” or it must be “in the interest of public safety.” The Court refused to accept the Government’s argument of inadequate technology in opposition to selective access to the Internet, clarifying that acceptance of such assertions would invest the Government with a free pass to repeatedly impose internet blockages.
Indefinite suspension of internet services was held to be illegal by the Hon’ble court. The same can only be done on a temporary basis, and thus directed that the Temporary Suspension Rules, 2017 need to be reviewed to prescribe a time limitation on the period of a shutdown and when periodic reviews of shutdown order are to take place.
It was further laid down that Rule 2(2) of the Telecom Suspension Rules, 2017 mandates that every order passed must be a reasoned order, one passed by a competent authority and illuminative of the “unavoidable” circumstances which warranted its passing. The court also directed the State to restore internet access for essential services such as e-banking, government websites, hospital services and so on.
With regards to the legality of the usage of Section 144 of the CrPC for the internet shutdown, the court acknowledges the preventive nature of the Section laying down that while it can be exercised in response to imminent danger as well as apprehension of dangers, but this danger must be in the nature of an “emergency.” In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr[11], the Apex Court clarified that the power under the Section 144 CrPC must be exercised in urgent situations and “the emergency must be sudden and the consequences sufficiently grave.” Therefore, it cannot be used simply to suppress valid expression of opinion and all orders should state the important facts in order to allow it to be subjected to judicial review should it be required.
Further, the lack of any concrete evidence on the part of the petitioners to adequately highlight how the restrictions imposed directly curbed the freedom of press in terms of publication and distribution of newspapers, the Court couldn’t ensure that it was a genuine claim for chilling effect and not simply an emotive argument for self-fulfilment. They, therefore, rejected the claim of the petitioners.
Present Day Context
This landmark judgement brilliantly deals with the concepts of law, intelligently recognizing the overstepping by the Government, aiding in the evolution of jurisprudence by striking a balance between individual liberties and national security concerns. The war of terrorism does not justify suspension of freedom of speech if there is no imminence of violence. The Court has ensured safeguards against arbitrary suspension of telecom services prospectively. Laying down the need to issue reasoned orders, make them public and subject them to review by the Court is a step towards protection of fundamental freedoms of individuals.
While the judiciary manages to achieve everything mentioned above in theory, it fails in the sphere of implementation. On one hand we have the Kerala High Court acknowledging and rightfully declaring the right to access the Internet as an extension of the right to education as well as right to privacy under Article 21 of the Constitution of India[12], while on the other hand, Supreme Court has refused to pass orders for 4G restoration in Jammu & Kashmir, even in extraordinary circumstances of a global pandemic and national lockdown when internet services are essential not just as means of information and expression but also for necessary things like delivery of groceries or student access to attend online classes.
Further, the Supreme Court has also directed the Centre to constitute a “Special Committee” to review and determine the necessity of the continuation of the restriction in the Union territory of Jammu Kashmir. Bizarrely, the aforesaid committee is to be headed by the Union Home Secretary, the Union Communications Secretary, and the Chief Secretary of Jammu and Kashmir. Such a provision delegates the adjudication work of the Judiciary to none other than the Executive, not only foregoing the principle of separation of powers but also completely obliterating the natural justice doctrine of Nemo judex in causa sua. It would, therefore hardly be surprising if the excesses in Kashmir continue given that the authority which passed such orders of internet vacuum is the one reviewing its validity.
While this judgement should still be celebrated as it is the first step towards the eventual realisation of the right to Internet, however, the lack of implementation by the Executive as well as the subsequent narrow judgement of the Apex Court has allowed for the excesses committed by the Government to gain authenticity.
[1] Solomon, S. D. Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press, 2016)
[2] Seth F. Kreimer, Technologies of Protest: Insurgent Social Movements and the First Amendment in the Era of the Internet, 150 University of Pennsylvania Law Review 125 (2001)
[3] Can be accessed at https://internetshutdowns.in/
[4] Shikhar Goel, Internet shutdowns: Strategy to maintain Law and Order or Muzzle Dissent, Engage (4th June, 2020, 10:30 AM) https://www.epw.in/engage/article/internet-shutdowns-strategy-maintain-law
[5] Ram Jethmalani v. Union of India, (2011) 8 SCC 1
[6] Anuradha Bhasin v. Union of India (2011) 8 SCC 1
[7] Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana,(1988) 3 SCC 410, Indian Express v. Union of India, 1986 AIR 515
[8] Supra note. 7
[9] CPIO v. Subhash Chandra Aggarwal (2019) 1 SCC 1.
[10] Hukam Chand Shyam Lal vs Union Of India And Ors 1976 AIR 789, PUCL v. Union of India, AIR 1997 SC
[11] Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, 1971 AIR 2486
[12] Faheema Shirin v. State of Kerala AIR 2020 Ker 35
Very informative and mind-opening.