Case Description about the Restrictions on the Internet in Jammu & Kashmir
• The Supreme Court of India held that an indefinite suspension of internet services would be illegal under Indian law and that orders for internet shutdown must satisfy the tests of necessity and proportionality.
• The Court directed the government to review the shutdown orders against the tests outlined in its judgment and lift those that were not necessary or did not have a temporal limit.
Background of the Restrictions On the Internet In Jammu & Kashmir
• The Government issued the Constitution (Application to Jammu and Kashmir) Order, 2019, which stripped Jammu and Kashmir of its special status and made it a fully integrated part of India, to which all provisions of the Constitution of India would apply.
• On August 4, 2019, mobile phone networks, internet services, and landline connectivity were all shut down in the region. Meaning there were Restrictions On the Internet In Jammu & Kashmir.
• The District Magistrates imposed additional restrictions on freedoms of movement and public assembly citing authority to do so under Section 144 of the Criminal Penal Code.
• A petition against the Restrictions On the Internet In Jammu & Kashmir, was brought by Ms. Anuradha Bhasin, the editor of the Kashmir Times Srinagar Edition.
• She argued that the internet is essential for the modern press and that by shutting it down, the authorities forced the print media to come to “a grinding halt.”
• She also argued that the government failed to consider whether the internet shutdown was reasonable and proportionate to the aims it pursued.
• She argued that the Restrictions On the Internet In Jammu & Kashmir were passed on the belief that there would be a danger to law and order. However, public order is not the same as law and order and neither were at risk when the order was passed.
• Petitioner Mr. Ghulam Nabi Azad argued that restrictions must be based on objective reasons and not merely on conjectures.
• The state of emergency used by the authorities to justify the restrictions could be declared only in light of an “internal disturbance” or “external aggression” under Article 356 of the Constitution, neither of which occurred.
• When imposing restrictions, the State must choose the least restrictive measures and balance the safety of people with the lawful exercise of their fundamental rights, which did not occur here.
• Concerning the internet shutdown, the petitioner argued that internet restrictions did not merely affect freedom of expression but also the right to trade as well as the ability of political representatives to communicate with their constituents.
• The petitioners also argued that the restricted mobile internet speed was hampering their rights to health, education, business, and free speech.
• They argued that the violation of the rights was particularly egregious in light of the COVID-19 imposed lockdown. Among other things, they were unable to access medical information and online educational content, due to the reduced speed.
• Respondents had not followed the guidelines laid down by the Court in Anuradha Bhasin and the Telecom Suspension Rules.
•Specifically, no Review Committee to look into the legality of the suspension was constituted. Moreover, the blanket order suspending the internet indicated a non-application of mind. Finally, the Union had failed to explain the relationship between the restriction of internet speed and national security.
• The Attorney General argued that the Restrictions On the Internet In Jammu & Kashmir were a measure to prevent terrorist acts and were justified considering the history of cross-border terrorism and internal militancy that had long plagued the State of Jammu and Kashmir.
• He recalled that similar steps had been taken in the past too, for example, in 2016 after a terrorist had been killed there.
• The Solicitor General reiterated the historical necessity argument and noted that a State’s first and foremost duty is to ensure security and protect the citizens’ lives.
• He also argued that the facts laid by the petitioners were false and exaggerated the effects of the restrictions. Particularly, he noted that individual movement had never been restricted, that restrictions were imposed only in certain areas and were relaxed soon after, and that all newspapers, television, and radio channels were functioning.
• He also said that social media, which allowed people to send messages and communicate with a number of people at the same time, could be used as a means to incite violence. he claimed that the “dark web” allowed individuals to purchase weapons and illegal substances easily.
• The Solicitor General rejected the argument that free speech standards as they related to newspapers applied to the internet on the grounds that their differences were too great. He explained that while newspapers only allowed one-way communication, the internet made it possible to communicaté in both directions, making the dissemination of messages very simple.
Restrictions On the Internet In Jammu & Kashmir
Issues in the case of Restrictions On the Internet In Jammu & Kashmir
1. Whether the Government can claim exemption from producing all of the restriction orders?
2. Whether freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade, or business over the Înternet is a part of the fundamental rights protected by Article 19(1)(a) and Article 19(1 )(g) of the Constitution?
3. Whether the Government’s action of prohibiting internet access is valid?
4. Whether the imposition of movement restrictions under Section 144 of the Code of Criminal Procedure was valid?
5. Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?
Judgment on the case of Restrictions On the Internet In Jammu & Kashmir
Whether the Government can claim exemption from producing all the orders for the restrictions?
• The Court held that the State had to produce the orders imposing the restrictions. It began by noting the difficulty it had experienced in determining the legality of the restrictions when the authorities had refused to produce the orders imposing the said restrictions.
• Citing the precedent in Ram Jethmalani v. Union of India, (2011) 8 SCC 1, the Court explained that the State had an obligation to disclose information in order to satisfy the right to remedy as established in Article 32 of India’s Constitution.
• Furthermore, Article 19 of India’s Constitution had been interpreted to include the right to information as an important part of the right to freedom of speech and expression.
• The Court added, “a democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know.” [para. 15] These fundamental rights obliged the State to act responsibly in protecting them and prohibited the State from taking away these rights casually.
• To make its point, the Court cited James Madison, “a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern the ignorance and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” [para. 16]
• In the present case, the State initially claimed privilege, but then dropped the claim and released some of the orders, explaining that all could not be released because of unspecified difficulties. For the Court, such justification was not a valid ground.
Did the restrictions on the internet in Jammu & Kashmir affect freedom of movement, freedom of speech and expression, and right to free trade and vocation?
• The Court reiterated that freedom of expression guaranteed under Article 19 of
• In Indian Express y. Union of India, (1985) 1 SCC 641, the Supreme Court ruled that freedom of expression protects the freedom of print medium.
• In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410, it was held that the right of citizens to scréen films was a part of the fundamental right of freedom of expression.
• Online expression has become one of the major means of information diffusion, and accordingly it was integral to the enjoyment of freedom of speech and expression guaranteed by Article 19(1)(a), but also could also be restricted under Article 19(2 ) of the Constitution.
• Accordingly, the Ințernet also plays a very imporțant role in trade and commerce, and some businesses were complețely dependent on the internet. Therefore the freedom of trade and commerce by using the internet was also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).
• The Constitution lists an exhaustive list of reasonable restrictions that include “interests of the sovereignty, integrity, security, friendly relations with the foreign States, public order, decency or morality or contempt of Court, děfamation or incitement to an offence.” [para. 31]*
• By reviewing its jurisprudence concerning the application of Article 19(2), the Court concluded that restrictions on free speech and expression could impose complete prohibitions.
• It agreed with the Government that Jammu and Kashmir had long been plagued by terrorism. The Court noted that modern terrorists relied heavily on the internet, which allowed them to disseminate false information and propaganda, raise funds, and recruit others to their cause.
• The Court then reviewed the U.S. First Amendment and its jurisprudence from 1863 to the present day conclude that speech that incites imminent violence is not protected.
1.Vallandigham, (Vallandigham 28 E Cas. 874 (1863)
2. Abrams v. the United States, 250 US 616 (1919) [para. 40]
3. Dennis v. the United States, 341 US 494 (1951) [para. 41]
4. Brandenburg v. Ohio, 395 US 444 (1969).
• The Supreme Court then proceeded to conduct an extensive comparative review of proportionality tests used by Indian, German, and Canadian Courts.
• It found that while there was agreement that proportionaļity was the key tool to achieve judicial balance when resolving questions of restrictions on fundamental rights, there was no agreement that proportionality and balancing were equivalent The Court then outlined its understanding of the test of proportionality:
1. The goal of the restriction must be legitimate.
2. The restriction must be necessary.
3. The authorities must consider if alternative measures to the restriction exist.
4. The least restrictive measure must be taken.
5. The restriction must be open to judicial review.
The legality of the Internet Shutdown
• It outright rejected the State’s justification for a total ban on the internet because it lacked the technology to selectively block internet services as accepting such logic would have given the State the green light to completely ban internet access every time.
• However, the Court conceded that there was “ample merit in the contention of the Government that the internet could be used to propagate terrorism thereby challenging the sovereignty and integrity of, India” and thus it is bad to determine the extent to which the restriction burdened free speech. [para. 76]
• The Court highlighted that it had to consider both procedural and substantive elements to determine the Constitutional legality of the internet shutdown. The procedural mechanism has two components. 00000Judgement
• First, there is the contractual component between Internet Service Providers and the Government. Second, there is the statutory component as enshrined under the Information Technology Act, 2000, the Code of Criminal Procedure, 1973, and the Telegraph Act.
• The Suspension Rules under Section 7 of the Telegraph Act were passed in 2017 and allowed the government to restrict telecom services, including access to the internet, subject to certain safeguards.
• These safeguards were that first, the suspension orders may be issued only by the Secretary to the Government of India in the Ministry of Home Affairs or by the Secretary to the State Government in charge of the Home Department.
• In unavoidable circumstances another official not below the rank of a Joint Secretary to the Government of India may issue the orders provided that the competent authority approves the orders within 24 hours of their issuance. Without approval, the suspension must be lifted within 24 hours.
• The orders must include reasons for the suspension and its copy must be sent to a Review Committee consisting of senior State officials. The reasons should not only explain the necessity of the suspension but also the “unavoidable” circumstance which necessitated the order.
• Furthermore Section 5(2) of the Telegraph Act permitted suspension orders only in a situation of public emergency or in the interest of public safety.
• The Court thus found that to issue a suspension order, the Government first had to determine that public, and not any kind of other, emergency existed. “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.” [para. 92]
• The State submitted eight orders to the Court. Four were passed by the Inspector General of the Police and the other four by the government of Jammu and Kashmir. The Solicitor General explained that the authorities relaxed some restrictions but were continuously appraising the situation on the ground. The Court conceded that the danger to public safety could not be ignored, but noted that any new restrictions will have to be imposed on the basis of a new order. Since the Court could not view all orders to understand which were no longer in effect and could not assess the public order situation, it “molded the relief in the operative portion.” [para. 102]
Restrictions Under Section 144 of the Code of Criminal Procedure Code
• The Court noted that ” Restrictions on the internet in Jammu & Kashmir orders passed under Section 144, Cr.PC has direct consequences on the fundamental rights of the public in general. Such a power, if used in a casual and cavalier manner, would result in severe illegality.” [para. 129]
• Thus, it is imperative to indicate the material facts necessitating the passing of such orders. The Court conceded that the State is best placed to assess threats to public order, but they had to exhibit the material facts to justify an order under Section 144 to enable judicial scrutiny and verification of the order’s legitimacy. A key consideration is the perceived imminence of the threat and whether invoking Section 144 was the proper remedy to prevent potential harm.
• Magistrates must balance the right and restriction against the right and duty, and any restrictions must be proportionate, i.e. “never allowed to be excéssive either in nature or in time.” [para. 39]
• Although the restrictions may have been removed, the Court stated that it cannot ignore noncompliance with the law in this case, as the issue at hand is not just about what happened in Jammu and Kashmir but also about imposing a check on the State.
• The Court reiterated that a government must follow the law if it feels that there is a threat to public order.
• the Court concluded that the power under Section 144 could be exercised “not only where there exists present danger, bụt 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.”[para. 140]
• The power cannot be used to suppress legitimate expression and should be used only in the presence of material facts justifying its application.
Freedom of the Press
• The Court rejected the Petitioners’ arguments that the restrictions on movement and communication imposed in Jammu and Kashmir directly curtailed freedom of the press and journalists’ ability to perform their professional duties. • The Court began by highlighting the importance of freedom of the press. It recalled that as early as 1914, the freedom of the press had been recognized in India.
• In Channing Arnold v. The Emperor, (1914) 16 Bom LR 544, the Privy Council stated that: “the freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject, in general, may go, so also may the journališt, but apart from the statute law bis privilege is no other and no higher. The range of his assertions, his criticisms, or his comments is as wide as, and no wider than that of any other subject.” [para. 142]
• The Court interpreted the Petitioner to claim that the imposed restrictions did not necessarily have a direct but rather an indirect as well a chilling effect on their freedom of “expression.
• However, the Court found that the Petitioners failed to offer evidence that the restrictions restricted the publishing of newspapers in Jammu and Kashmir or to challenge the State’s argument that newspapers were published and distributed during the communication and movement lockdown.
• Based on the above the Court found that:
• Freedom of expression_and the freedom to practice any profession online was protécted by India’s Constitution
• Although the Government could suspend the Internet, the government had to prove the necessity and impose a temporal limit, which it failed to do in this case. Thus, the government had to review its suspension orders and lift those that were not necessary or did not have a temporal limit.
• Restrictions under Section 144 of the Code of Criminal Procedure could not be used to suppress legitimate expression and are subject to judicial scrutiny. The Court thus ordered the State to review its restrictions on the internet in Jammu & Kashmir.
