Author: S. Sujitha Student, Law Student at School of Excellence in Law, Chennai
Facts of the case
The issue begins from 4.08.19 when mobile phone networks, internet services, landline connectivity were all discontinued in the valley. On 5.08.19, following the constitutional order 272 issued by the President, the district magistrate subsequently imposed restrictions on movement and public gathering .In the light of the aforesaid restrictions, the petitioner of W.P (C) No.1031 of 2019 Ms. Anuradha bhasin, the executive editor of the Kashmir Times Srinagar edition, was severely affected as she couldn’t distribute Kashmir Times Srinagar edition on 5.08.2019 and publish the same from 6.08.2019. Accordingly, the petitioner filed a writ petition under Article 32 of the Constitution. Another Petition of W.P. (C) No.1164 of 2019 was filed by Mr.Ghulam Nabi Azad, Member of Parliament, aggrieved by the aforesaid restrictions, alleging that his communication with the people of his community was halted by restricting him from travelling to his constituency. However, this petition was withdrawn during the arguments.
I) whether the government can claim exemption from producing all the orders passed under Section 144 of Cr.P.C and the suspension rules?
II) Whether the freedom of speech and expression and Freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?
III) Whether the Government’s action of prohibiting internet access is valid?
IV) Whether the imposition of restriction under Section 144 of Cr.P.C was valid?
V) Whether the Freedom of Press of the petitioner in W.P. (C) No.1031 of 2019 was violated?
On behalf of petitioners
The counsel argued that the orders must be produced before the court as unpublished orders cannot be accorded by law as per Natural justice.
The counsel submitted that the orders failed to indicate application of mind and were not in line with the suspension rules and the Government of National Telecom Policy,2012.
The counsel contended that internet blockade is a restriction not only on the Fundamental right of Freedom to Speech and Expression but also impinges on the Right to trade. Further, the counsel added that the term ‘Reasonable’ under article 19(2) must be paid attention and the restrictions imposed should be reasonable as specified in the said article and needs to follow the provisions in Sec.5 of the Telegraphic Act.
The counsel submitted that the restrictions should be laid in accordance with the test of proportionality as held in the case of K.S Puttaswamy vs. Union of India .
The counsel contended that the state should have drawn a distinction between the restriction on mass communication and the general internet resulting in a less restrictive measure. In addition to this, added they that the restrictions though are temporary in nature have lasted more than 100 days.
The counsel argued that restrictions under sec.144 Cr.P.C are passed in case of law and order situation but the orders passed did not indicate any law and order issue. Hence, Orders under sec.144 should be based on some objective material rather than mere conjectures.
On behalf of respondents
The counsel argued that the preventive measures incorporated were in the apprehension of huge violence considering the background of cross border terrorism and internal militancy in the State.
The counsel contended that the petitioners were incorrect in stating that public movement was restricted as there was no restriction on individual movement.
The counsel submitted that the Magistrates passed orders under Sec.144, Cr.P.C after knowing the ground situation in their respective jurisdictional areas. Further added that absence of restrictions in Ladakh region and imposition of restrictions based on threat perception on other regions indicate the application of mind. The counsel argued that the restrictions passed were in line with the suspension rules.
The counsel in response to the petitioner’s contention regarding imposition on specific individuals submitted that it would be impossible to segregate and control troublemakers from the public.
Further, they added that SC has limited jurisdiction and that it doesn’t sit in appeal of the decision under sec.144 in the absence of malafide allegations against the officers and the issues discussed is of national security.
The counsel contended that the purpose of internet shutdown is to ascertain that the situation is not aggravated by targeted messages from outside the country. Further, added that it wasn’t possible to ban only certain websites while allowing access to others.
Since the orders concern fundamental rights of an individual, the state must a take proactive approach in placing the orders on record unless a specific ground of privilege is claimed by the state on affidavit. Despite claiming priviledge at the outset, the state subsequently produced 8 orders and cited difficulty in producing all the orders. The court held that the State cannot claim priviledge as there was no valid ground to accept the same before the court.
As the technology evolves, the Freedom of Speech and Expression through different medium has been recognized in a catena of judgments .Protection of medium of expression can be traced to the case of Indian Express vs. Union of India which declared the Freedom of print media. The court held that the freedom of Speech and expression under Article 19(1)(a) and the Right to carry on any trade or business under 19(1)(g) through the medium of internet are constitutionally protected.
In this regard, the court said that both substantive and procedural law must be given importance. The twofold mechanisms for restricting internet are contractual (based on the contract between Internet Service Providers and the government) and statutory (the criminal Procedure Code, 1973 and the Telegraph Act). Since 2017, the state restricts telecom services including internet, according to the suspension rules under Sec.7 of the Telegraph Act. In the case of Hukam Chand Shyam Lal vs. UOI, the court highlighted that occurrence of a ‘public emergency’ is the pre-requisite for the exercise of power under this section. Therefore, the state must impose such restriction only if ‘necessary’ and ‘unavoidable’.
The court clarified that the power under sec.144, Cr.P.C can be exercised in case of an apprehension of danger as observed in Babulal Parate case . A mere disturbance of law and order leading to disorder may not necessarily lead to a breach of public order. When a restriction is passed on the entire populace, the state must assure that the restrictions are proportionate to the perceived threat. The court pointed to the inability of the aggrieved party, to challenge effectively, pursuant to the orders being silent on the material facts, reinforces that the indication of material facts while passing an order under sec.144 Cr.P.C is imperative.
The court elucidated the importance of the freedom of press in the modern society. In this case, as the petitioner failed to produce any evidence indicating the restrictions on Freedom of press, the court is at difficulty to conclude whether the claim of chilling effect is legitimate. As the petitioner resumed publishing newspaper, the Court after ensuring Freedom of press in the locality, rejected the plea.
The court held that the state shall revoke orders which aren’t in accordance with the laws laid down. Adding on, the court emphasized that power under Sec.144 Cr.P.C cannot used to suppress legitimate exercise of any democratic rights. The orders passed under this section must rely on material facts and indicate application of mind. The court held that indefinite suspension of telecom services is impermissible and the passing of temporary suspension must adhere to test of proportionality. As there are certain gaps in the suspension rules, the court ordered the Review Commission constituted under Rule 2(5) of the Suspension rules to conduct periodic review within 7 working days of the previous review. The court held that the Freedom of Speech and Expression and Freedom of Trade through the medium of internet is constitutionally protected, subject to restrictions on the same would be in accordance with 19(2) and (6) of the Constitution.
The decision of the Hon’ble Supreme Court, beyond the shadow of the doubt, has wider implications on the Constitutional and Criminal Law. It goes without saying that the ruling of the court to ensure Constitutional Guarantee to Freedom of Speech and Expression and Freedom of Trade and Commerce over the Internet turns out be an important precedent for the upcoming cases. Inspite of the rapid shift transforming almost all the day to day activities to online mode, it is unfortunate that the court is not able to uphold the Right to Internet. Furthermore, the Covid 19 Pandemic urges the need and constructs pertinent moment for the recognition of this right with concern to the welfare of the society.
 K.S Puttaswamy vs. Union of India (2017) 10 SCC 1.
 Indian Express Vs. Union of India(1985) 1 SCC 641
 Hukam Chand Shyam Lal vs. Union of India,(1976) 2 SCC 128
 Babulal Parate vs. State of Bombay,AIR (1960) SC 51