Author: Shweta Bilonikar
LLM (Financial Regulations)
K.P. Mehta School of Law, Mumbai
CITATION :(2020) 2 MLJ 587 (SC): LNIND 2020 SC 105]
DATE OF JUDGEMENT: 10TH FEBRUARY 2020
BENCH: JUSTICE N.V. RAMANA, JUSTICE AJAY RASTOGI, JUSTICE V. RAMASUBRAMANIAN
This case emanates from the Constitutional Order No. 272 that was passed by the President of India, which revoked Article 370 of the Constitution. In this order, all the provisions of the Indian Constitution were made applicable to Jammu and Kashmir. Since 1954, this state enjoyed a special status as per Article 370 of the Constitution. Until now, it had its own Constitution and the provisions of the Indian Constitution did not apply to the state without ratification of the same by the State Assembly. The Government of India only had power over three subjects, namely, defence, foreign affairs, and communication over the state.
After the revocation of Article 370, many restrictions were imposed by the Government of India in the newly formed Union Territories of Jammu, Kashmir, and Ladakh. Most tourists were asked to leave the state and return home, while educational institutions and offices were shut down. Restrictions on the free movement of people, public gatherings, high-speed internet, media, etc. were also imposed by over-reaching application of Section 144 of I.P.C. As a result, this region faced the most prolonged internet shutdown in the history of India. Full network functionality hasn’t yet been restored in the state even during this pandemic.
This landmark judgment specifically deals with the legality of the internet ban and free movement of people in the abovementioned Union Territories.
2. FACTS OF THE CASE
Anuradha Bhasin is a journalist by profession. She was the executive editor of Kashmir Times, Srinagar edition. She filed a writ petition W.P. (C) No. 1031 of 2019 alleging that the restrictions imposed by the Central Government violated her fundamental right to freedom of practice of profession/occupation under Article 19 of the Constitution.
She contended that her freedom was violated due to restrictions on high-speed internet in the region. As a result, she was not able to publish the Kashmir edition, given that her work is highly dependent on the internet.
Another subsequent petition W.P. (C) No. 1164 of 2019 was filed by Mr. Ghulam Nabi Azad, who is a Member of Parliament. He contended that such restrictions can only be made in case of a National Emergency and that there was no reason for the declaration of such emergency as there were no incidents of internal or external disruptions.
He contended that such restrictions must be imposed only on the people who disrupt law and order and not on everyone in a blanket fashion. He also said that the ban on the internet violates the freedom of speech and expression guaranteed by Part III of the Constitution.
Both the petitions were heard by the court together.
3. CONTENTIONS OF THE PETITIONER
The Petitioner alleged that the government did not have valid reasons for imposing such restrictions as the law and order in that area were not that disturbed.
She stated that the internet is a very important necessity for her professional conduct, without which she cannot carry out her profession and publish her newspaper. Hence, her right to carry out the occupation of her choice had been violated owing to the government’s restrictions.
She also contended that her over-arching freedom of speech and expression was also violated due to the internet ban. An intervenor also contended that the government needs to find a way to balance the freedoms as well as the security of its citizens.
The Petitioner also contended that the people have a right to know the rationale behind, and the proportionality of such blanket restrictions. The reasons behind such drastic measures must be published before the people in order to explain the necessity for such action.
She further contended that the orders were passed by the President on mere apprehension, even as there was no actual reason behind such apprehension which could justify the act of passing such orders.
4. CONTENTIONS OF THE RESPONDENT
The learned counsel appearing on behalf of the Respondent contended that such restrictions were imposed considering the background of terrorism in the state of Jammu and Kashmir. There was a high probability of instability in the state which would threaten the peace and security of its people. Therefore, it was necessary to take a preventive measure so that such a situation wouldn’t arise. Similar measures were taken in 2016 when a terrorist was killed in the region.
It was also argued that the internet ban was also put in place to thwart the communication between terrorists and to stop the spread of misinformation and radical content. The internet is a very powerful medium. Through the internet, there was a chance of spreading rumours, fake messages, posts, pictures, videos, etc. which could have led to instability and volatility in the region. There are many instances in the past which have led to violence and riots in the state due to some or the other fake news going viral.
It was also claimed that the internet was never banned in the region, but was only restricted temporarily.
The primary rebuttal of the learned counsel was that the restrictions under Section 144 of the I.P.C. can even be imposed as a preventive measure for the security of the citizens. Further, it was also argued that the orders were passed according to the procedure mentioned in the Suspension Rules, and the same was strictly reviewed from time to time.
- Whether the freedom to speech and expression and the freedom to practice any profession/occupation over the internet, is part of the fundamental right under Article 19 of the Constitution?
- Whether the freedom of the press of the petitioner was violated due to restrictions imposed by Section 144 the I.P.C.?
- Was the government’s action of banning the internet indefinitely, valid?
- Was the imposition of restrictions under Section 144 of the I.P.C. valid?
- Whether the government can claim exemptions while imposing Section 144 of the I.P.C.?
6. SUPREME COURT’S JUDGMENT
- With respect to Issue no. 1, the Supreme Court held that the internet is included as part of the freedom of speech and expression. It is a very powerful medium of expression in today’s world. The court reiterated this point by emphasizing on the ruling in the case of Indian Express v. Union of India. In that case, it was held that freedom of print media is included in the fundamental right under Article 19 of the Constitution.
- It was also stated that the freedom of speech and expression with respect to the use of the internet is also constitutionally protected as a part of Article 19(1) (g) of the Constitution. However, the court held that the use of the internet must be reasonable and within the boundaries under Article 19(2) and Article 19(6) of the Constitution.
- On Issue no. 2, the court rejected the contention of the Petitioner as there was no concrete evidence to prove that the freedom of the press of the petitioner was violated. This was based on the grounds that several other newspapers and publications were in operation in that region in the said period. Additionally, even the petitioner had ultimately resumed publication of her newspaper and the government has also taken care of protecting the freedom of the press in the region despite the wide-ranging restrictions.
- For the remaining issues regarding Section 144 of the I.P.C., the Supreme Court stated that the government can impose restrictions under this section only in a state of emergency. Only a magistrate and through him, the state has the power to decide whether there is a possibility of a threat to public peace in a given area. One cannot be deprived of the right to liberty unless there are actual, and not reprehensible reasons behind it. The government cannot impose restrictions as a preventive measure as it was done in this case. There needs to be a state of emergency in the region to justify such actions.
- Additionally, the court also stated that it is necessary to publish information about such restrictions as part of natural justice and the right to information of the citizens who would directly be affected by such restrictions. The government refused to publish the order before the court. Therefore, the legality of the limitation of the order could not be determined.
- The state had no reason to impose such restrictions based on mere apprehensions. Also, the duration of such restrictions must be determined by the review committee.
- It was also held that the internet ban is not permissible as restrictions on the internet can only be imposed under certain circumstances like a public emergency or for reasons of public safety, as mentioned under Section 5 (2) of the Telegraph Act. To pass such an order, the reasons for such urgency must be determined, in addition to providing a definite period of such a ban. Such determinations shall be made on reasonable grounds only.
- The freedom of speech and expression through the internet and freedom to practice any profession, occupation, business, trade, etc. which is based on the internet, is included as a fundamental right in Part III of the Constitution. Access to the internet can be prohibited only on some reasonable grounds. Otherwise, it amounts to a violation of the fundamental right of citizens. On this count, the court ordered the government to follow the principle of proportionality in order to satisfy the concept of natural justice.
- While it was held that the right to access the internet can only be restricted in case of national emergencies, in the instant matter, the court neither removed restrictions on the movement of the people in the region nor did it quash the ban on the internet, considering the current scenario in the region.
- Ultimately, this judgment serves as a precedent which states the rules and procedures regarding the imposition of such restrictions in similar situations. It also attempts to restrict the abuse of power by the executive in the future.
- It was also held that the government cannot claim any exemptions for the order issued under Section 144 of the I.P.C. from the court.
7. APPRAISAL OF THE POINTS OF LAW
Article 19 of the Constitution of India-
- 19 (1)(a) of the Constitution of India guarantees the freedom of speech and expression to all its citizens.
- 19 (1)(g) of the Constitution of India states that its citizens have the right to practice any profession, occupation, trade, or business in any part of India.
- 19 (2) authorises the government to impose reasonable restrictions on freedom of speech and expression in the interests of its citizens.
- 19 (6) talks about the nature of restrictions that can be imposed by the state in the interest of public order.
Section 144 of the Indian Penal Code-
It prohibits the gathering of more than five people, holding public meetings, and carrying of firearms. It gives absolute power to the magistrate to impose such restrictions in case of emergencies, for public order and safety, to apprehended danger, or in unusual situations, etc. Such restrictions can be imposed by the state under this provision of the Act.
Section 5 (2) of the Telegraph Act, 1885
It states that lawful interceptions of phones and computers can be done by the Centre to the States under reasonable circumstances.
The Supreme Court stated that the internet is a very important aspect of today’s business. Access to the internet is the right of all citizens. This case can be used as a precedent to invoke internet access as the fundamental right of citizens.
The right to practice any business, profession, or trade through the internet and the freedom of speech and expression through the internet and social media is included within the scope of Article 19 of the Constitution of India.
- Westlaw India,
- SCC online last visited.
- thehindu.com, newspaper article by V. Venkatesan 11th Jan 2020.
- org Case summary by Anaya Dutt.
 1986 AIR 515, 1985 SCR (2) 287