Authored by Raj Krishna, an LLM candidate of NLIU, Bhopal and Jagriti Pandey, a 4th year student of CNLU, Patna.
Introduction
India has the highest number of internet shutdowns in the world with the region of Jammu & Kashmir being the worst affected. The region of Jammu Kashmir witnessed the longest internet shutdown imposed by any democratic government in the year 2019.[i]
As a result, the Supreme Court of India was asked to decide upon the constitutionality of the communication shutdown in the case of Anuradha Bhasin v. Union of India.[ii] The Court vides its judgment endorsed principles of human rights and proportionality. The Court even recognized a derivative fundamental right to internet access. But, still, the judgment did not provide any immediate relief to the people of Jammu and Kashmir.[iii]
Background of the case
Mobile and broadband Internet services were suspended in Jammu and Kashmir since August 4, 2019. Furthermore, the District Magistrate under Section 144 of the Criminal Penal Code also imposed restrictions upon freedom of movement and public assembly. The internet shutdown along with movement restrictions made it nearly impossible for the people of Jammu & Kashmir to exercise their right to freedom of speech and expression under Article 19(1)(a) and the right to carry on any trade, occupation, or business under Article 19(1)(g). As a result, the petitioners approached the Supreme Court.[iv]
Judgment of the court
On 10th January 2020, a three-judge bench of Supreme Court comprising of Justices N.V. Ramana, Subhash Reddy, and B.R. Gavai in the case of Anuradha Bhasin v Union of India and Ors held that “an indefinite suspension of internet services would be illegal under Indian law and the orders dealing with internet shutdown must satisfy the tests of necessity and proportionality.” Though the Court in its judgment has not declared that the right to the internet is a fundamental right, however, the court declared that “the right to freedom of speech and expression under Article 19(1) (a), and the right to carry on any trade or business under 19(1) (g), using the medium of the Internet is constitutionally protected”. The Court however has reiterated the fact that though under the Constitution one enjoys the right to freedom of speech expression the same can be curtailed on the grounds of national security.[v]
Critical analysis of the judgment
Do not look at what the judges say but look at what they do with what they say.[vi]
A bare reading of the judgment in Anuradha Bhasin vs Union of India will give one an impression that the Supreme Court dispensed its duty to uphold the rights of the Petitioners and made the Respondents (the executive) answerable for the constant breach of rights by the internet ban and imposition of Section 144 in the Kashmir valley. However, nothing in the operative part of the judgment critically addressed the plight of the persons in the Valley whose businesses, education, etc. suffered a loss due to the internet ban.
The Court failed to address the fact that Internet ban to stop terrorism and militancy is not a sustainable structure because one way the government might succeed to finish militancy by its iron hand but it will in the meantime devoid people of their fundamental right to development, to form conscious opinions of the world they live in, to nurture their talents and to carry out the professions they desire. It is important to acknowledge that it has been 8 months since the ban of high-speed internet in the Valley. It was only a few days ago that the 2G internet was restored. In a fast-moving world with high competition, depriving an entire community of something as essential as the internet is depriving them of equal opportunity as enshrined in the Preamble to the Indian Constitution that recognizes Jammu and Kashmir as an integral part of the Union of India. The judgment in effect holds little or no significance in the lives of lakhs of Kashmiris who are still living without high-speed internet. In this case, the battle for securing freedom of speech and expression was only half won.[vii]
Internet as a fundamental right
The freedom of the press is a requirement in any democratic society for its effective functioning.[viii] The Court held that freedom of the press through the internet was an important right under Article 19(1) (a) but held that the right to the internet could be suspended if the State deems it necessary. Hence, effectively it means that if the state presents before the Court that there were necessary circumstances the state could subject people to an internet ban and deprive them of all the rights that the internet enables. The court did acknowledge the might of the internet but citing a New York Times article by one of the fathers of the Internet[ix] refused to confer the stature of the human right to the right to the internet. It is this omission that is very important to note the anomaly in denying the status of the human right to a right that enables certain inalienable rights such as the right to speech, expression, and access to information.
It is very ironic for a State that fiercely advocates the concept of ‘Digital India’ to ban internet connectivity for an unthinkable prolonged period of time in one of its most harassed territories.[x]
Lack of technology One of the main contentions by the Respondents was that there was no technology to ban certain websites rather than putting a general ban on the internet. The court held that the deprivation of rights should be proportionate to the necessity of the State and the State has to prove that its acts were proportionate to the deprivation of rights by showing that there were alternatives and the employed method was the least restrictive of all. On this point, we find it odd that the Court did not ask the authorities to make submissions of reports that prove that total ban was the only option.
The Court also commented upon the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017, and asked the State to put a maximum period limit replacing the ambiguous terms that do not provide an objective limit on the curbs. It is pertinent to note that 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 a temporary duration only. Any order suspending internet issued under the Suspension Rules must adhere to the principle of proportionality and must not extend beyond the necessary duration. Furthermore, any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein.[xi] Theoretically the judgment is sound, but on the operative side the judgment fails to provide any immediate relief.
Conclusion
“The battle between the exercise of rights and the exercise of power has a long history. The stability of political institutions has always been challenged in times of crisis. Anticipating such situations, the Constitution and Criminal law contain provisions to meet these challenges.”[xii]
The judgment has made fundamental rights subservient to the powers of the State. It is because the Court has observed that the repetitive orders for the operation of Section 144 are an abuse of power and that the executive is bound to show the presence of credible information that discloses imminent threat to the security of the state and public order. But still, it allowed the Respondents to not disclose certain information that was used for the imposition of Curfew orders in the valley which is unfortunate.
References
Devdutta Mukhopadhay & Apar Gupta, Jammu & Kashmir Internet Restrictions Cases: A Missed Opportunity to Redefine Fundamental Rights in the Digital Age, The Indian Journal of Constitutional Law, Volume 9.
[ii] Anuradha Bhasin v. Union of India, Writ Petition (Civil) No. 1031/2019 available at https://indiankanoon.org/doc/82461587/
[iii] Devdutta Mukhopadhyay & Apar Gupta, Jammu & Kashmir Internet Restrictions Cases: A Missed Opportunity to Redefine Fundamental Rights in the Digital Age, The Indian Journal of Constitutional Law, Volume 9.
[iv] Bhasin v Union of India, Global Freedom of Expression (November 25, 2020, 7:00 p.m.), https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/
[v] Anuradha Bhasin v. Union of India, Writ Petition (Civil) No. 1031/2019 ,available at https://indiankanoon.org/doc/82461587/
[vi] Karl Llewellyn
[vii] V Venkatesan, Verdict on Internet curbs in J&K in defence of free speech, but relief remains elusive, Frontline, available at :https://frontline.thehindu.com/dispatches/article30542427.ece
[viii]Para 142
[ix] Para 23
[x] Shikhar Goel, Internet Shutdowns: Strategy to Maintain Law and Order or Muzzle Dissent, Economic and Political Weekly, available at: https://www.epw.in/engage/article/internet-shutdowns-strategy-maintain-law
[xi] Para 152
[xii] K.G. Kannabiran, Wages of Impunity