Declaring that access to the Internet is a constitutionally protected right under Article 19 (1)(a) of Constitution of India, the Supreme Court ordered the Jammu & Kashmir Administration to review within a week all orders imposing curbs in the newly created Union Territory following nullification of Article 370 of Constitution of India.

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) of Constitution of India. The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (1)(a) and Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality. ruled Three Judge Bench headed by Justice N. V. Ramana.

Article 19 (6) empowers the State to make laws to lay down the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business. It also authorises the State or a Corporation owned or controlled by the State to carry on any trade, business, industry or service whether to the exclusion, complete or partial, of citizens or otherwise.

The Bench which also included Justice B. R. Gavai and Justice R. Subhash Reddy ordered the Jammu & Kashmir Administration to restore Internet Services in the institutions providing essential services like hospitals and educational places.

• An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017.
• Suspension can be utilized for temporary duration only.
• Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.
• Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein.

The Bench said, as it directed the authorities to review forthwith all orders suspending Internet Services and revoke orders not in consonance with its order.

The mobile phones which were unheard of once and later a luxury has now become part and parcel of the day to day life and even to a stage that it is unavoidable to survive with dignity and freedom. Though initially it was a mere replacement of land phone enabling one to connect another and talk, on the advent of internet the connectivity became so wide. On availability of more and more facilities, since the year 1998, the number of users gradually increased and as at present India stands 2nd in the world in the usage of Internet.

The facilities to access Internet, which was initially possible only through desk top computers, later in laptop, is now available in mobile phones which are handy and portable; with more and more applications, connectivity became feasible for everyone everywhere even among the common man. Apart from the facilities to read E-news papers, e-books, etc. one can undergo Online Courses also sitting at home or hostel and there are courses under SWAYAM recognized by the University Grants Commission, which students can undergo even when they are undergoing regular studies in colleges.

There is no gainsaying that in today’s world the Internet stands as the most utilized and accessible medium for exchange of information. The revolution within the cyberspace has been phenomenal in the past decade, wherein, the limitation of storage space and accessibility of print medium has been remedied by the usage of internet.

The genesis of the issue starts with the Security Advisory issued by the Civil Secretariat, Home Department, Government of Jammu & Kashmir, advising the tourists and the Amarnath Yatris to curtail their stay and make arrangements for their return in the interest of safety and security. Subsequently, Educational Institutions and Offices were ordered to remain shut until further orders. On August 04, 2019, Mobile Phone Networks, Internet Services, and Landline Connectivity were all discontinued in the Valley, with restrictions on movement also being imposed in some areas.

On August 05, 2019, Constitutional Order 272 was issued by the President of India, applying all provisions of the Constitution of India to the State of Jammu & Kashmir, and modifying Article 367 of Constitution of India in its application to the State of Jammu & Kashmir. In light of the prevailing circumstances, on the same day, the District Magistrates, apprehending breach of peace and tranquillity, imposed restrictions on movement and public gatherings by virtue of powers vested under Section 144 Cr. P. C. Due to the aforesaid restrictions, the Petitioner in W. P. (C) No. 1031 of 2019 claims that the movement of journalists was severely restricted and on 05.08.2019, the Kashmir Times Srinagar Edition could not be distributed. The Petitioner has submitted that since 06.08.2019, she has been unable to publish the Srinagar edition of Kashmir Times pursuant to the aforesaid restrictions.

Aggrieved by the same, the Petitioners (Ms. Anuradha Bhasin & Mr. Ghulam Nabi Azad) approached Supreme Court under Article 32 of the Constitution of India seeking issuance of an appropriate writ for setting aside or quashing any and all order (s), notification (s), direction (s) and/or circular (s) issued by the Respondents under which any/all modes of communication including internet, mobile and fixed line telecommunication services have been shut down or suspended or in any way made inaccessible or unavailable in any locality.

Further, the Petitioners sought the issuance of an appropriate writ or direction directing Respondents to immediately restore all modes of communication including mobile, internet and landline services throughout Jammu & Kashmir in order to provide an enabling environment for the media to practice its profession. Moreover, the Petitioner in W. P. (C) No. 1031 of 2019 also pleaded to pass any appropriate writ or direction directing the Respondents to take necessary steps for ensuring free and safe movement of reporters and journalists and other media personnel. Lastly, she also pleaded for the framing of guidelines ensuring that the rights and means of media personnel to report and publish news is not unreasonably curtailed.

Moreover, Mr. Ghulam Nabi Azad (Petitioner in W.P. (C) No. 1164 of 2019), alleges that he was stopped from travelling to his constituency in Jammu and Kashmir. In this context, he alleges that due to the aforesaid restrictions, he is not able to communicate with the people of his constituency.

Petitioners Counsel argued that the State had not indicated as to the necessity to block landline services. He further submitted that the Communications/Internet restrictions which were imposed under the Indian Telegraph Act, 1885, needs to follow the provisions of Section 5 of the Telegraph Act, in line with Article 19 of Constitution of India. The internet restrictions, not only impact the right to free speech of individuals but also impinges on their right to trade.

Therefore, a less restrictive measure, such as restricting only social media websites like Facebook and Whatsapp, should and could have been passed, as has been done in India while prohibiting human trafficking and child pornography websites. While there can be some restrictions, there can be no blanket orders, as it would amount to a complete ban. Instead, a distinction should be drawn while imposing restrictions on social media/mass communication and the general internet. These restrictions need to be tested on the anvil of the test of proportionality.

Supreme Court confided itself to the following amongst other issues, inter alia;

1. Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?
2. Whether the Government’s action of prohibiting internet access is valid?

The Supreme Court observed that the advancements in the field of technology have to be recognized.
24. Law and technology seldom mix like oil and water. There is a consistent criticism that the development of technology is not met by equivalent movement in the law. In this context, 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. In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet., observed in Para No. 24 of the Judgment authored by Justice N. V. Ramana.

The Judgment noted that the SC in a catena of judgments has recognized free speech as a fundamental right, and, as technology has evolved, has recognized the freedom of speech and expression over different media of expression. This was based on the precedents Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410 , Secretary, Ministry of Information & Broadcasting, Government of India etc.

In this background, it observed as under;
26. The development of the jurisprudence in protecting the medium for expression can be traced to the case of Indian Express Vs Union of India, (1985) 1 SCC 641, wherein, this Court had declared that the freedom of print medium is covered under the freedom of speech and expression.

In Odyssey Communications Pvt. Ltd. Vs Laokvidayan Sanghatana, (1988) 3 SCC 410, it was held that the right of citizens to exhibit films on Doordarshan, subject to the terms and conditions to be imposed by the Doordarshan, is a part of the fundamental right of freedom of expression guaranteed under Article 19 (1)(a), which can be curtailed only under circumstances set out under Article 19 (2).

Further, this Court expanded this protection to the use of airwaves in the case of Secretary, Ministry of Information & Broadcasting, Government of India (supra). In this context, we may note that this Court, in a catena of judgments, has recognized free speech as a fundamental right, and, as technology has evolved, has recognized the freedom of speech and expression over different media of expression.

Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19 (1)(a) and accordingly, any restriction on the same must be in accordance with Article 19 (2) of the Constitution.

Internet important tool for trade and commerce
The Supreme Court noted that the internet is also a very important tool for trade and commerce.

It was held;
27. In this context, we need to note that the internet is also a very important tool for trade and commerce. The globalization of the Indian economy and the rapid advances in information and technology have opened up vast business avenues and transformed India as a global IT hub. There is no doubt that there are certain trades which are completely dependent on the internet. Such a right of trade through internet also fosters consumerism and availability of choice.

Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19 (1)(g)), subject to the restrictions provided under Article 19 (6).

Occurrence of Public Emergency or interests of public safety are pre-requisites for shutdown
The procedural mechanism contemplated for restrictions on the Internet, is twofold: first is contractual, relating to the contract signed between Internet Service Providers and the Government, and the second is statutory, under the Information Technology Act, 2000; Criminal Procedure Code, 1973 and Indian Telegraph Act,1885.

Section 69-A of the Information Technology Act, 2000 read with the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 allows blocking of access to information.

Prior to 2017, any measure restricting the internet generally or even shutting down the internet was passed under Section 144 of Code of Criminal Procedure Code, 1973, a general provision granting wide powers to the Magistrates specified therein to pass orders in cases of apprehended danger.

The position has changed since 2017, with the passage of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017 issued under Section 7 of the Indian Telegraph Act, 1885. With the promulgation of the Suspension Rules, the States are using the aforesaid Rules to restrict telecom services including access to the internet.

92.....what emerges is that the pre­ requisite for an order to be passed under this sub­section, and therefore the Suspension Rules, is the occurrence of a public emergency or for it to be in the interest of public safety. Although the phrase public emergency has not been defined under the Telegraph Act, it has been clarified that the meaning of the phrase can be inferred from its usage in conjunction with the phrase in the interest of public safety following it.

Referring to Rule 2 (2) of the Suspension Rules, it was held that the reasoning of the authorised officer in the internet shutdown order should not only indicate the necessity of the measure but also what the unavoidable circumstance was.

The purpose of the aforesaid rule is to integrate the proportionality analysis within the framework of the Rules.

99. Lastly, we think it necessary to reiterate that complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy. Having said so, we may note that the aforesaid Suspension Rules have certain gaps, which are required to be considered by the legislature.

Indefinite suspension of internet not permissible
The Court passed the following directions in relation to internet shutdown:

• An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017.
• Suspension can be utilized for temporary duration only. d. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.
• Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein.

Court reads into provisions for periodic review into the Suspension Rules
The Court noted a gap in the Suspension Rules as it did not provide for a periodic review of the suspension of internet.

The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, we direct that the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6), the Bench ordered.

The Bench ultimately directed the J&K Administration to review all orders suspending internet services forthwith. h. Orders not in accordance with the law laid down above, must be revoked.

Further, in future, if there is a necessity to pass fresh orders, the law laid down herein must be followed.
In case the Government is choosing not to restore internet in any regions, it should consider allowing certain websites, such as government websites, such as government websites, localized/limited e-banking facilities, hospital services and other essential services in such regions.

It was said;
In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e­-banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.

Important to note that the Court has not expressed any opinion on the right to access internet and has clarified that the judgment is confined to the point of the use of internet as a tool for exercise of freedom of speech and expression and trade and commerce. The internet’s role in nudging a shift from a resource-based economy to a knowledge-based economy, as well as the resulting socio-economic benefits is well acknowledged.

Written By: Dinesh Singh Chauhan, Advocate, J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]