Citation-2019 SCC OnLine SC 1725
Court– Supreme Court of India
Bench-N.V. Ramana, V. Ramasubramanian
Parties–Petitioners: Anuradha Bhasin, Ghulam Nabi Azad
Respondents: Mr. K.K Venugopal , lead Attorney General for Union of India and Mr. Tushar Mehta, Solicitor General for the state of Jammu and Kashmir.
BACKGROUND OF THE CASE
Jammu and Kashmir is an Indian territory bordering Pakistan that has been the subject of a decades-long dispute between India and Pakistan. Under Article 370 of the Indian Constitution, the territory enjoyed special status, had its own Constitution and laws and also Indian citizens from other states were not allowed to purchase land or property there. On August 5, 2019, the Indian Government issued Constitution (Application to Jammu and Kashmir) Rule,2019 which stripped Jammu and Kashmir of its special status that it had enjoyed since 1954 and made all provision of the Constitution of India fully applicable.
The issue started on 2nd August with the security advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir advised tourists and all the Amarnath Yatris pilgrims to leave Jammu and Kashmir area in India. Subsequently, educational institutions and offices were also ordered to remain shut until further orders. On August 4, 2019 internet services, mobile phone network and landline connectivity were also shut down until further orders.
On August 5, 2019, the Constitutional Order No. 272 was passed by the President of India applying all provisions of the Constitution of India to Jammu and Kashmir and no special status shall be enjoyed. Due to prevailing circumstances, the District Magistrate imposed an additional restriction on the movement and public gathering, apprehending breach of peace and tranquility under Section 144 of Cr.P.C . Due to internet shutdown and movement restriction limited the ability of journalists to travel and publish and accordingly were challenged in the court for violation of Article 19(1) of the Indian Constitution. In the light of such circumstances, the Supreme Court, dealt with the legality of internet shutdown and movement restrictions are challenged under Article 32 of the Indian Constitution.
The main issue framed by the Apex court:
- Whether the Government can claim exemption from producing all the orders passed under Section 144 of Cr.P.C and other orders under the Suspension Rules?
- Whether the freedom of speech and expression and freedom to practice 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 Indian Constitution?
- Whether the Government’s action of prohibiting internet access is valid or not?
- Whether the imposition of restrictions under Section 144, Criminal Procedure Code were valid or not?
- Whether the freedom of press of the Petitioner W.P. (C)No. 1031 of 2019 was infringed due to the restrictions?
Arguments from Petitioner side:
W.P. (C) No. 1031 of 2019
- The petition was brought by Editor Ms. Anuradha Bhasin, of the Kashmir Times. She argued that the internet absolutely essential for the modern press and that by shutting it down it hinders their movement. She argued that the restrictions were passed on mere apprehension to 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.”
- An Intervenor argued that there is need to balancing the measures important to maintain national security and curbing terrorism along with the rights of citizens. The State is justifying by saying the prevalent situation in Jammu & Kashmir, and gives the state too broad powers to impose such restriction. It replaces individual rights over social control. He submitted that restrictions imposed are in opposition of Indian National Telecom Policy, 2012. Lastly, the restrictions were said to be temporary in nature but lasted over 100days.
- Another Intervenor argued that the necessity to test the order in reference to the circumstances on which date of passing of order. The necessary part to publish an order is a part of natural justice and it also made accessible to the public. Further, the petitioner argued that the restriction was not justified as the proportionality test was upheld by the court. The State had to consider whether the effect of the restriction on fundamental rights, is reasonable or not.
W.P. (C) No. 1164 of 2019:
- The petition was filed by Mr. Ghulam Nabi Azad (a Member of Parliament) argued that restrictions must be based on objective reasons. Further, the national emergency can be declared in limited cases while in the present case neither the “internal disturbance” or “external aggression” under Article 356 of the Constitution, occurred to declare an emergency. Also, the petitioner argued that restrictions on movement should be specifically targeting those group of people apprehended to disturb the peace and not the entire state must be bringing to halt. When imposing restrictions, the State must choose the least restrictive measures and must balance the fundamental rights with the safety of people, which did not occur here. Concerning about internet shutdown, the petitioner argued that internet restrictions not only affect freedom of expression and speech but also the right to carry trade, profession and occupation.
W.P. (Crl.) No. 225 of 2019:
- Although the petition was withdrawn during the argument, the petitioner submitted that the restrictions caused harm even to general and law-abiding citizens which was later on defended by the India’s Attorney General and Solicitor General.
Arguments from the side of respondents:
Mr. K.K Venugopal, learned Attorney General for Union of India
- The Attorney General argued that the background of terrorism in Jammu and Kashmir has been taken into account and it be foolish not to take preventive measures knowing the cross border terrorism and internal militancy in the State. If the government doesn`t take such measure, there can be huge violence. Similar action was taken in the year 2016, when a terrorist was killed.
Mr. Tushar Mehta, learned Solicitor General for State of J&K
- The Solicitor General noted that a primary duty of state is to protect the citizens lives. Particularly, he noted that individual’s movement had never been restricted, that restrictions were imposed only in few areas and were relaxed soon after, and that all newspapers, television and radio channels were functioning including Srinagar.
- Further, he argued that even before the Constitutional Order for abrogating Article 370 had been issued, provocative hate speeches and messages were transmitted and this all in public domain. Accordingly, the courts have limited jurisdiction when it comes to national security and no mala fide allegation made against the concerned officers.
- He submitted that the internet was never restricted in the Jammu and Ladakh regions. Through social media, messages can be sent and reach number of people at the same time, and can be used to incite violence. Thus, the internet can be used to circulate false news or fake images, which were then used to spread unnecessary violence. Further, dark web allows to purchase illegal weapons and to ban certain sites was an effective idea as earlier in 2016, it failed.
- The Solicitor General rejected the argument that free speech standards as they related to newspapers applied to the internet on the reasonable grounds. Through newspapers, there is only one-way communication, the internet is two-way communication made it easy to spread, therefore same jurisprudence can be allowed. Different reasoning is being applied while imposing such restrictions. Lastly, these orders strictly follow the procedures of Suspension rules.
Internet has become essential part of everyday life. The court held that the freedom of speech and expression and freedom to practice any profession or to carry on any occupation, trade or business under 19(1)(g), over the internet, is constitutionally protected. Although the government can suspend internet, but the government had to prove necessity and impose a temporal limit. Directions were given to review the orders suspending internet connectivity. Although the state opposed selective access to internet services based on lack of technology, the Court held that if such a contention is accepted, then the Government would have a free pass to put a complete internet suspension every time and that such complete blocking/prohibition permanently cannot be accepted. The Court further held that complete broad suspension of Telecom services, be it the Internet or otherwise is valid but there must be unavoidable circumstances otherwise the order passed will cease to exist and that the State must assess the existence of an alternate less intrusive remedy.
The District Magistrate were also directed to review orders prohibiting free movement under Section 144 of the Code of Criminal Procedure (Cr.P.C.) The Court held that the repetitive use of restriction leads to abuse of power. The apex court directed the state to present all orders which lead to the imposition of S.144 of Cr.P.C as well as under the Telecom Suspension Rules including internet. Restrictions under section 144 of the Code of Criminal Procedure Code could not be used to supress legitimate opinion of public and subject to judicial scrutiny. Further, the court does not indulge in the matter as petitioner has resumed the publication. But, said that as a responsible government freedom of press should be cared.
Freedom of speech and expression is one of the essence of healthy society. Media in present times is considered the 4th pillar of the democracy. One cannot imagine healthy society without the existence of media in society. This case come in light when the press and general public of Jammu and Kashmir witnessed internet shutdown and restriction on movement, public gathering. The court directed the government to present all the orders which led to the imposition of Section 144 of Cr.P.C. and ban on the telecom services. We can say that this direction is justified because such order restricts the fundamental rights of the people. As this case is a ray of hope as the court held the freedom of speech and expression is the fundamental right over the internet is a fundamental right so in future the court, subsequent cases it may be hold that the right to access Internet is a fundamental right. Hence, this judgment may give reasonableness to unnecessary shutdowns.
Author: Akriti Mishra,
Veer Narmad South Gujarat University, Surat, 2nd Year Law student