Freedoms Of Speech & Expression, Trade & Commerce Through Medium Of Internet Are Constitutionally Protected : SC In Kashmir Case [Read Judgment]

A significant takeaway from the Supreme Court's judgement on Kashmir lockdown is its declaration that freedom of speech and expression and also freedom of trade and commerce through the medium of internet are constitutionally protected rights under Articles 19(1)(a) and Articles 19(1)(g), respectively.

A bench comprising Justices N V Ramana, Surya Kant and B R Gavai declared :

"We declare 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).

The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality(para 152(b))".

It is also important to note that the Court has not expressed any opinion on the right to access internet and has clarified that the judgment is confined to the point of the use of internet as a tool for exercise of freedom of speech and expression and trade and commerce(para 28).

The Court was considering the petitions filed by Anuradha Bhasin, Executive Editor of Kashmir Times daily and Rajya Sabha MP Ghulam Nabi Azad which challenged the curbs on internet, media and also other prohibitions imposed in Kashmir region following the abrogation of the special status of J&K on August 5. 

The internet shutdown in Kashmir, which has crossed 150 days, is reportedly the longest ever in the world in a democracy.

The Court observed that the advancements in the field of technology have to be recognized. 

"Non recognition of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet (para 24)", observed the judgment authored by Justice Ramana.

The judgment noted that the SC in a catena of judgments has recognized free speech as a fundamental right, and, as technology has evolved, has recognized the freedom of speech and expression over different media of expression. This was based on the precedents Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410 , Secretary, Ministry of Information & Broadcasting, Government of India etc.

In this backdrop, it was observed :

"Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution (para 26)".

Internet important tool for trade and commerce

The Court noted that the internet is also a very important tool for trade and commerce.

It was held :

"The globalization of the Indian economy and the rapid advances in information and technology have opened up vast business avenues and transformed India as a global IT hub. There is no doubt that there are certain trades which are completely dependent on the internet. Such a right of trade through internet also fosters consumerism and availability of choice. Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6) (para 27)".

Occurrence of "Public Emergency" or "interests of public safety" are pre-requisites for shutdown

The Court then referred to the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017, which are framed under the Telegraph Act.

"the pre-requisite for an order to be passed under Section 5 sub-section (2), and therefore the Suspension Rules, is the occurrence of a "public emergency" or "in the interest of public safety", said the Court (Para 92).

Referring to Rule 2(2) of the Suspension Rules, it was held that the reasoning of the authorised officer in the internet shutdown order should "not only indicate the necessity of the measure but also what the "unavoidable" circumstance was".

The purpose of the aforesaid rule is to integrate the proportionality analysis within the framework of the Rules.

"we think it necessary to reiterate that complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, which must be considered by the State only if 'necessary' and 'unavoidable'. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy (para 99)", the Court said.

Indefinite suspension of internet not permissible

The Court passed the following directions in relation to internet shutdown :

• 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 temporary duration only.
• Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.
• Any order suspending internet under the Suspension Rules is subject to judicial review.

Court reads into provisions for periodic review into the Suspension Rules

The Court noted a 'gap' in the Suspension Rules as it did not provide for a periodic review of the suspension of internet.

"The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, we direct that the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6)", the Court ordered.

The Court ultimately directed the J&K administration to review the internet shutdown orders within a week. The review should be done as per the parameters laid down in the judgment. If fresh orders of shutdown are found to be necessary, the law laid down in the judgment should be followed for that, said the Court.

In case the Government is choosing not to restore internet in any regions, it should consider allowing certain websites, such as government websites, localized/limited e-banking facilities, hospital services and other essential services in such regions.

It was said :

"In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e-banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately"

Case Details
Title : Anuradha Bhasin v Union of India & Ghulam Nabi Azad v Union of India
Case No : WP(c) 1031/19, 1164/19
Coram : Justices N V Ramana, Surya Kant and B R Gavai
Appearances : Advocates Vrinda Grover, Senior Advocates Kapil Sibal, Huzefa Ahmadi, Dushyant Dave for petitioners/intervenors; Attorney General K K Venugopal & Solicitor General Tushar Mehta for Union Government and J&K Administration

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