Supreme Court On Internet Shutdowns: A Missed Opportunity
Security forces stand guard in Srinagar on Aug. 30, 2019. (Photographer: Sumit Dayal/Bloomberg)

Supreme Court On Internet Shutdowns: A Missed Opportunity

BloombergQuintOpinion

Last week, a three-judge bench of the Supreme Court directed the government to review all the orders suspending internet services in Kashmir, while stopping short of adjudicating on the legality of the 160-day-long (and continuing) internet shutdown.

Through its judgment, the Supreme Court advanced the jurisprudence on internet shutdowns, albeit in small steps. Five issues are worth highlighting.

First, and perhaps the most important, is the court’s direction to the government to publish all present, and future, orders passed under Section 144 of the Code of Criminal Procedure (which were issued in Kashmir to prohibit public gatherings) and for suspension of telecom services, including the internet. The court reasoned that orders that affect the lives, liberty, and property of people; and demand compliance, must be notified “directly and reliably”. This is necessary, both to comply with the principles of natural justice, and to enable the affected persons to challenge the orders before the High Court or competent authorities.

The Supreme Court’s direction is notable because the state had vigorously resisted providing the court and parties with a copy of all the orders, much less publishing them online. In fact, only after more than two months since the filing of the petitions, did the state of Jammu & Kashmir even provide a few sample orders authorising the internet shutdown and the imposition of Section 144, CrPC. This fact was curiously relied upon by the court to refrain from deciding the validity of the internet shutdown, allowing the state, in effect, to take advantage of its own wrong.

Second, the Supreme Court clarified that an order suspending the internet is subject to judicial review and national security considerations will not preclude the court from reviewing executive action, whether it is the suspension of the internet or the imposition of prohibitory orders under Section 144, CrPC.

Third, although the court did not review executive action in authorising a communication shutdown, its observations and conclusion strongly point towards the inference that the current shut down is illegal.

The court made it clear that an indefinite suspension of internet services is impermissible.

Suspension can be for “temporary duration” only, and must “adhere to the principle of proportionality and must not extend beyond necessary duration”. Additionally, only the “least restrictive measure” can be resorted to by the state, with the authorities having to assess the existence of any alternative mechanism in furtherance of their goal.

The true impact of the judgment will only be felt when these principles are applied to the facts of the Kashmir blockade. This will be done by the Review Committee constituted under the Telegraph Act, and eventually the High Court of Jammu & Kashmir, in case of a further challenge.

It does seem, prima facie, keeping in view the factors that need to be considered during a proportionality assessment – the territorial extent of the restriction, the stage of an emergency, nature of urgency, duration of such restrictive measure and nature of such restriction – the continuing internet shutdown will be declared illegal.

Fourth, the Supreme Court expressly recognised that 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 the Constitution. The freedom of speech and expression that has traditionally been enjoyed over the print medium, applies equally over different media of expression as technology evolves. The court’s recognition of the importance of the internet as a tool for trade and commerce and the fact that certain trades are completely dependent on the internet will play an important role in future litigation around internet shutdowns, and may even give rise to compensation claims for loss of business if the current shut down in Kashmir is declared unconstitutional.

Also read: India Lost at Least $1.3 Billion to Internet Shutdowns Last Year

However, the court did not go as far as to recognise that the right to access the internet is a fundamental right, and did not express any views on the same, observing that none of the counsels had argued for declaring this as a fundamental right. In doing so, it missed an opportunity to affirm the recent judgment of the Kerala High Court in Faheema Shirin (2019) which gave judicial recognition to the right to internet access as a fundamental right. In fact, even the National Telecom Policy of 2012 recognizes the right to broadband connectivity as a “basic necessity like education and health.” Both these documents were brought to the Supreme Court’s attention, but have not been referred to in the judgment.

Finally, one of the most progressive aspects of the judgment, and where the jurisprudence has substantially been advanced by the court relates to the orders under Section 144, CrPC. The court has, for the first time, expressly read in principles of proportionality in the assessment of an order passed under Section 144. It clarified that “the power under Section 144, CrPC cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic right”; and that repeat Section 144 orders are an abuse of power. These directions will be very relevant for the challenge to the blanket imposition of Section 144 CrPC in Bangalore, pending before the Karnataka High Court.

It bears reiteration that various sample orders were present before the Supreme Court, and extensive arguments were made about the legality of these orders. The court could, and should, have directed the state to file all the orders passed before it, based on the principles enunciated in this very judgment.

The Supreme Court’s failure to decide on the validity of the continuing internet shutdown represents a missed opportunity.

There will be uncertainty over the interpretation of these orders and their application to the facts on the ground. There will be further challenges to the orders of the Review Committee, and possibly even the High Court. The Supreme Court could have avoided such unnecessary litigation by exercising its right to judicial review.

Be that as it may, the focus will now shift to the Jammu & Kashmir High Court and one can only hope that any challenges before the High Court will be decided promptly.

Vrinda Bhandari is an advocate and was involved in the challenge, on behalf of the intervenors before the Supreme Court.

The views expressed here are those of the author, and do not necessarily represent the views of BloombergQuint or its editorial team.

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