By Harsh Vardhan Bhojak
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On Internet Shutdown
After dealing with a substantial aspect of the law, in this part of the judgment, the court dealt with the procedural aspect as to the imposition of internet shutdown. The court recognised two procedural mechanisms for restrictions. First is contractual, relating to contract signed between the Internet service provider and the government. The second is statutory, under the IT Act 2000, the CrPC 1973, and the Telegraph Act. In the present case, the court confined itself to the Telegraph Act only.
Before 2017,
measures restricting or shutting down the internet used to be passed under
Section 144 CrPC by Magistrates but after the passage of Temporary
Suspension of Telecom Services (Public Emergency or Public Service)
Rules, 2017 (hereinafter Suspension Rules) which were
notified under the Telegraph Act in 2017, the States are using the said rules
to restrict or shut down telecom services or access to the internet. Rule 2 of
the Suspension Rule lays down the procedure to be followed to suspend telecom
services.
The court examined
Rule 2 of the Suspension Rules in great detail and that order issued under rule
should be in accordance with Section 5 (2) of the Telegraph Act which permitted
it in the occurrence of ‘public emergency’ or ‘in the interest of public
safety’ which is the prerequisite for an order to be passed under this section.
While defining the ‘public emergency’ court observed though it has not been
defined in the Telegraph Act. The court said, “it has been clarified that the
meaning of the phrase can be inferred from its usage in conjunction with the
phrase ‘in the interest of public safety’ following it”.
The court noted
that publication or notification of orders is not being provided in Suspension
Rules which is a settled principle of law, and natural justice particularly
those which affect liberty, lives, property of the people. The court made it
the requirement to ensure publication of all orders passed under the Suspension
Rules which can be challenged before the High Court under article 226.
Afterwards, the
court said “complete broad suspension of telecom services, be it the
Internet or otherwise, being a drastic measure, must be considered by the State
only if ‘necessary’ and ‘unavoidable’. The state must assess the existence of an alternate
least intrusive remedy”.
Because there is no
indication of the maximum duration for which Suspension orders can be in
operation, the court directed that Review Committee constituted under Rule 2(5)
of the Suspension Rules to conduct a review within seven working days of the
previous review and the Review committee must consider the proportionality of
the orders and orders must be allowed for the necessary time period.
On Restriction
under Section 144 CrPC
Petitioners had
opposed the imposition of Section 144 CrPC on grounds that there existed no
situation of emergency and that the government could not pass any orders in
anticipation or based on mere apprehension as the government has to show that
there would be an action which will create obstruction, annoyance or injury to
any person or will cause disturbance of the public tranquillity.
To this court
examined the scope of Section 144 CrPC and said it enables the State to take
preventive measures to deal with imminent threats to public peace even when
there exists mere apprehension of danger but section also has various
safeguards inbuilt to ensure that power is not abused. Court cited Gulam Abbas v. State of Uttar Pradesh in
which this court held that order passed under Section 144 CrPC can be
challenged under Article 226 of the constitution.
Petitioners argued
that ‘law and order’ is of narrower ambit than public order and invocation of
law and order would justify a narrower set of restrictions under section 144
CrPC. SC explained by citing Ram
Manohar Lohia v. State of Bihar in which it held that
one has to imagine three concentric circles, in which largest one will
represent ‘law and order’, next ‘public order’ and smallest one ‘security of
state’ hence court in this case said that mere disturbance of ‘law and order’
doesn’t lead breach of ‘public order’. The magistrate must tailor the
restriction based upon the nature of the situation and is also bound to balance
the rights and restrictions the court said. The court also held that order
under said section can be passed against an individual or a general public.
The court
importantly observed that “orders passed under Section 144 CrPC have direct
consequences upon the fundamental rights of the public in general. Such a
power, if used in a casual and cavalier manner, would result in severe
illegality.” The court held that order passed under this section should be
published and state material facts to enable judicial review.
On Freedom of Press
Here court considered
the contention regarding curtailment of freedom of press due to various
restrictions such as the imposition of Section 144 CrPC, restriction on access
to internet, and communication which indirectly affected freedom of press and
had a chilling effect on the freedom of press.
The court talked on
right of freedom of press through various judgments but said in the present
case there has not been a direct restriction on freedom of press and no
evidence has been put forth to establish that other individuals were also
restricted from publishing newspapers. Where the Solicitor General submitted
that other newspapers were working during the aforesaid time and now petitioner
has also resumed the publication, the court didn’t indulge further in the
issue. In the last court said, “responsible governments are required to respect
the freedom of the press at all times.”
Decision
- Freedom of speech and expression and freedom to practice any profession or carry on any trade, business or occupation over the medium of internet is constitutionally protected under Article 19(1)(a) and 19(1)(g).
- Internet services cannot be suspended indefinitely and any order suspending the internet under the Suspension Rules must adhere to principle of proportionality.
- Government to publish all order in force and any future orders under Section 144 CrPC and Suspension Rules.
- The power provided under Section 144 CrPC cannot be used to supress the legitimate expression of opinion or grievances or exercise of any democratic right.
- State to review all orders suspending internet services in present case.
Critical Analysis
This judgment came at a time when there were severe restrictions in the
state of J&K and people were facing hardship in leading their life
normally. Though the Supreme Court dealt with the issue of internet shutdown in
depth but it will need to be seen how far it can mitigate the arbitrary shutdowns.
Even when the court settled various questions of law, but when one talks in
terms of relief to the people it hardly changed anything in the valley. Now
it’s upon the government to follow the instructions of the court to review its order
and balance them on the principle of proportionality.
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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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