Access To The Internet Is A Fundamental Right
The District Magistrates in Jammu and Kashmir placed restrictions on movement and public gatherings by anticipating breach of peace and tranquilly by virtue of powers vested in Section 144, CrPC.
Internet shutdown was also enforced by the Central Government and J&K Administration as they felt the restrictions were appropriate in the interest of national security. It was argued that the internet ban was appropriate in order to cut off cooperation between militants.
But, the Supreme Court held that access to the Internet is a fundamental right under Article 19 of the Constitution and ordered the administration of Jammu and Kashmir to review all orders imposing restrictions on the Union territory.
The Jammu and Kashmir administration was also ordered by a five-judge bench headed by Justice NV Ramana to restore Internet services in institutions that provide vital services, such as hospitals and educational places.
What is Internet Shutdown?
- Section 144 of the Code of Criminal Procedure used to shut down the Internet. The Code of Criminal Procedure used to shut down the Internet empowers the government of the state to take steps, including the imposition of such limitations, to preserve public tranquilly.
- Temporary suspension of Telecom Services (Public Emergency or Public Safety) Law, 2017 Rule 2(1) provides the 'competent authority' with the process and powers to issue a direction for Internet suspension.
The 'competent authority' can be Home Secretary of the Union or the government of the state.
Where it is not possible to obtain prior instructions from the competent authority, that order may be issued by an officer not below the rank of Joint Secretary to the Government of India.
SC Judgment - Anuradha Bhasin vs Union of India and Ors
- The Indian constitution renders every citizen 's right to freedom of speech and expression a fundamental right. It was listed in point (a) of Article 19(1) of the Constitution.
- The right to freedom of speech and expression has been expanded by the Supreme Court on many occasions.
- For millions of Indian people, the Internet is the primary source of information.
- A non-citizen can benefit from the same advantages, but may not assert it as his or her fundamental right.
- The Court declared that, pursuant to Article 19(1)(a) and Article 19(1)(g) of the Constitution, the freedom of speech and expression and the freedom to practice any career or to participate in any trade, company or occupation on the internet enjoy constitutional security. The restriction of such fundamental rights should be compatible with the mandate laid down in Article 19(2) and (6) of the Constitution, including
- Suspension of internet for indefinite period not permissible. It can only be for a reasonable duration and periodic review should be done. The court also said the orders suspending the Internet would have to necessarily state how the action was justified and proportionate to the imminent threat to law and order.
- Going forward any net ban will be subject to the scrutiny. The observations made by the court essentially laid out guidelines that Internet shutdowns cannot be arbitrary and can be challenged in courts.
Chilling Effect Doctrine
It is primarily adopted to challenge a state intervention which may be lawful, but which imposes a great burden on freedom of expression.
The chilling effect is used to characterize open censorship, such as a government preventing the publishing of a book, as well as more subtle restrictions, such as vague laws and high legal costs, which trigger writers and journalist confusion and fear.
SC On Section 144 CrPC
- Prohibitory orders under Section 144 CrPC cannot be imposed to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
- Section 144 CrPC orders can be imposed when there is apprehension of danger. But the danger must be in the nature of an “emergency”.
- While passing orders under Section 144 CrPC, Magistrate has to balance interests of individual rights and concerns of state.
- The orders under Section 144 CrPC should state material facts to enable judicial review. The power should be exercised in a reasonable and bona fide manner.
- Repetitive orders under Section 144, Cr.P.C. would be an abuse of power
Reference to UDHR
- A central aspect of the Universal Declaration of Human Rights (UDHR) is the freedom to access the Internet.
- UDHR in Article 19 states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
High Court Judgments in the past
2015-The Gujarat High Court upheld the decision of the state government to ban mobile internet during the agitation of the Patel quota reservation. According to the Gujarat High Court's order: Yes; Section 144 of the Criminal Procedure Code, 1973 ('CrPC') empowers the state government machinery to enforce a temporary prohibition.
2018- When the administration conducted examinations like RAS prelims and police constable recruitment, the State of Rajasthan prohibited internet services more than 10 times in the state. To avoid cheating in entrance tests, the Govt shut the internet. This generated discomfort for the general public.
The Rajasthan high court said that for conducting tests, Internet services may not be banned.
Conclusion
- In our digital era, the decision could have broader, permanent ramifications for fundamental rights, because other laws created and enforced by the Government of India, in particular under the Information Technology Act, have allowed countless websites to be blocked through secret orders that are not released.
- It has harmed democracy and has breached the values of judicial control and the need for rigorous checks and balances.
- It is important to interpret this decision as a work in progress. It leaves open several questions of real state acts affecting people today, and questions of law. It can be seen as a call for further action as well.
- In the future, the government must devise specific rules on internet shutdowns that are in accordance with the decision of the Court, and these should be put out for public debate.