By Harsh Vardhan Bhojak
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Citation: (2020) 3 SCC 637
Act: Constitution of India, CrPC
Principle: The rights to freedom of speech and expression and freedom of practicing any trade or profession over the internet are also protected under the Constitution; restricting them under Section 144 CrPC should be done adhering to the principle of proportionality
Introduction
It all started on the 2nd of August when the Indian government mobilized additional security forces in Jammu and Kashmir and issued advisory to pilgrims in J&K to curtail their stay. On the 4th of August mobile phone networks, internet services, landline connectivity, were all ordered to remain shut along with a restriction on movement in some areas. Section 144 CrPC was imposed with effect from midnight 5 August resulting in the historical and controversial announcement of repealing Article 370 and 35A (special status to J&K) which made it subservient to all provisions of the Constitution of India. Various cases were filed in the Supreme Court challenging the measures of the Union government including restrictions placed by it. One of the Petitions was moved by the journalist Anuradha Bhasin.
Facts
This communication
blackout and movement restriction made it difficult for the press to function
normally in the state of J&K, as a result of which, Anuradha Bhasin, editor
in chief of Srinagar Times filed a Writ Petition in the Supreme Court
challenging the measures of government and violation of freedom of press in the
state.
She contended that
because of the severe restriction imposed by the government, the movement of journalists
is also restricted and that she is not able to publish Kashmir Times Srinagar
Edition because of the restrictions and communication blackout in the
state.
Gulam Nabi Azad
(Rajya Sabha MP) also filed a Writ Petition (W.P. (C) No. 1164 of 2019) in the
Supreme Court which was clubbed by the SC to this case. Azad sought the
issuance of appropriate writ to set aside or quash an order, notification,
direction, or circular issued by the Union government (Respondent) under which
modes of communication have been shut down.
Issue
The court in this
case identified five issues based on arguments presented by Petitioners and the
government:
- Whether the government can
claim exemption from producing all the restriction orders passed under
Section 144 CrPC and other acts?
- Whether the freedom of speech
and expression and the freedom to practice any profession, or to carry on
any occupation, trade, or business over the Internet is a part of a
fundamental right protected by Article 19(1)(a) and 19(1)(g) of the Indian
Constitution?
- Whether prohibiting internet
access by the government is valid?
- Whether the imposition of
restrictions under Section 144 CrPC was valid?
- Whether freedom of press of
the Petitioner (Anuradha Bhasin) was violated due to restrictions?
Analysis
On Production of
Orders
When SC asked
Respondent-State to produce all orders passed to place restrictions in J&K,
the Respondent claimed privilege over orders passed. But later it produced
sample orders only citing difficulty in producing numerous orders. SC gave two
separate types of reasoning for the production of orders, on the obligation of
the state to disclose information the court cited Ram Jethmalani v. UOI said
that Article 19 of the Indian constitution has been interpreted to mandate the
right to information as an important part of the right to freedom of speech and
expression. Court stressed that “democracy which is sworn to transparency and
accountability, and mandate the production of orders as it is a right of an
individual to know”. Secondly, the court said democracy requires free-flowing
of information and under natural law, no law can be passed secretly.
The court asked the
production of all necessary orders unless there are specific grounds of
privilege or countervailing public interest is to be balanced and the court
will determine whether claims made by state override the interest of the
petitioner. The court denied the government’s claim of privilege and later
difficulty in producing all orders as not being a valid ground to refuse
production of orders before a court.
On Fundamental
Rights and Restriction
Petitioners had
contended that impugned restrictions have affected their fundamental rights
under Article 19(1)(a) and 19(1)(g). Here, the court acknowledged that in
‘today’s world internet is most utilized and also an accessible medium for the
exchange of information’. The court distinguished between internet as a tool
and freedom of expression through internet. The court said article 19(1)(a)
includes the right to disseminate information and protection of medium for
expression can be traced to Indian
Express v. Union of India in which this court (SC) held that freedom
of print medium is protected under freedom of speech and expression. SC said
this court in its various judgements has recognized the freedom of speech and
expression over different media of expression. Therefore, this court after
recognizing the role of internet in today’s world for free speech and commerce
and trade held that “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
medium of internet is constitutionally protected.”
The court further
dwelled on the question of proportionality and reasonability in the curtailment
of the fundamental rights, as restrictions can be placed by the government on
the fundamental right of speech and expression as provided under Article 19(2).
It was contented by the Petitioners that reasonable restrictions cannot mean
complete prohibition as what happened in J&K. The court cited its various
judgments and said that the restrictions can impose complete prohibition in an
appropriate case. But in such cases, complete prohibition should not excessively
burden free speech and the government has to justify imposition of prohibition
as to why the lesser alternative was not taken.
In the end, the court
will decide whether such restriction amounts to a complete prohibition, which
is a question of fact and will be decided based on facts and circumstances of
the case. The court accepted that atmosphere in J&K is not normal while
modern terrorism heavily relies on the internet.
The court analysed the
restriction imposed on article 19(1)(a) in the Indian context and also
considered the scenario of United States and its First Amendment with
jurisprudence relating to it. While citing various cases and scholars SC said
that “any speech which incites immediate violence does not enjoy constitutional
protection.” While the court reiterated that the government is entitled to
restrict freedom guaranteed under Article 19(1)(a) in compliance with the
requirements under Article 19(2) but also acknowledged the requirement of
balancing which brings it to the principle of proportionality and even in K. S.
Puttaswamy case (9 judge bench) this court observed this.
The court also
spoke on Modern Dental College & Research Centre v. State of Madhya Pradesh in
which this court held that no constitutional rights can be claimed absolute
where rights are interconnected to each other which means some right can be
limited in the public interest. While also holding that conflicting fundamental
rights should be interpreted harmoniously.
The principle of
proportionality is a way of balancing these competing rights. The court considered
and reviewed various proportionality tests used by German, Canadian (Oakes
test), and Indian courts to ensure right is not restricted beyond what is
necessary. After considering precedents and jurisprudence on requirements of
the doctrine of proportionality court gave a test of proportionality:
- The
goal of restrictions must be legitimate.
- Authorities
must assess the alternative mechanism.
- Only
the least restrictive measure can be resorted to by the state.
- Measures will be subject to
judicial review.
In part 2 of this article, we will continue the analysis and describe the final decision, along with a critical analysis.
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Harsh Vardhan Bhojak is a 2nd year Law student at National Law University Delhi. A meditator who is trying to know the reason behind his existence. He is not sure what to do next but is eager to learn something new every time where the law helps him in making rational choices.
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