The Supreme Court ruling invalidating five-month-old restrictions on the internet and the right to assembly in Kashmir gives a big fillip to free speech and civil liberties—not just in the Valley but in the entire country. A three-judge bench also issued directives regarding the prohibitory orders under Section 144 of the Code of Criminal Procedure.
“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.”
Article 19 of Constitution provides “protection of certain rights regarding freedom of speech, etc.” Article 19(1)(a) pertains to “freedom of speech and expression,” whereas Article 19(1)(g) is about the right to “practise any profession, or to carry on any occupation, trade or business.”
In effect, the apex court has acknowledged that freedoms of expression and occupation over the medium of internet are fundamental rights, subject only to the Constitutionally laid-down reasonable restrictions. The restrictions in this context are two. The first is Article 19 (2): “Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or inblockquotement to an offence.”
The second is Article 19(6): “Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.”
By recognizing that free speech and business activities over the internet are fundamental rights, the apex court has ensured that now government, Central or state, will be hugely constrained in imposing restrictions on the internet. So, the authorities have been casual, cavalier, and indiscriminate in ordering online shutdowns, totally insensitive to the concerns of common people.
It is not just Kashmir that has suffered internet outages, though it is the worst affected, but also other states—Arunachal Pradesh, Assam, Jammu & Kashmir, Meghalaya, Rajasthan, Tripura, and Uttar Pradesh. A UK-based research firm has estimated that online curfews in India cost the economy about $1.3 billion in 2019.
In its verdict, the apex court also said, “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.”
Further, “any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.” Such an order will now also be “subject to judicial review based on the parameters set out herein.”
Since the existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules, the SC directed “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…”
It also directed the authorities “to review all orders suspending internet services forthwith.”
Regarding prohibitory orders, the apex court said, “The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.”
In other words, such orders can’t be issue on a routine basis, which is the current practice. More importantly, the “power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.”
Section 144 orders have also been subjected to judicial review. “While exercising the power under Section 144, Cr.P.C., the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure.” Further, “repetitive orders under Section 144, Cr.P.C. would be an abuse of power.”
The Supreme Court judgment will go a long way in ensuring that free speech and the right to livelihood don’t get smothered by executive highhandedness.