ANALYSIS OF VIOLATION OF ARTICLE 19(1) WITH RESPECT TO INTERNET SHUTDOWNS
This blog is authored by Manya Manchanda, 4th-year student, Vivekananda Institute of Professional Studies, GGSIPU.
With the onset of the internet becoming a far-reaching medium of expression, various developments have taken place over the internet. The internet has become a hub of activities regulating the lives of people. Businesses, education, cross-border events and communications between individuals take place over the Internet, thus shutting down the internet has a major effect on the lives of the people.
Internet Shutdown is seen as an instrument of internet censorship for it is a blanket ban on internet access; a government-imposed intentional disruption of the internet, making it inaccessible or inoperative for a specific population or location, for any duration of time. The internet is ubiquitous and it is important for the exercise of democratic principles of freedom of speech and expression. It is a vital source of information and knowledge. The growing trend of shutdowns has faced strong international condemnation of such practices by India. It is an emerging cause of concern, as shutdowns not only threaten the democratic structure but also infringes the development and human rights of the citizens.
According to the Internet Shutdown tracker by SFLC, a total number of the 385 Internet shutdowns were recorded from January 2012 until March 15th 2020. The union territory of Jammu and Kashmir experienced an internet shutdown for 213 days, from 4th August 2019 to 4th March 2020. This internet shutdown was imposed on 4th August 2019, when Article 370 of the Indian Constitution was abrogated by the Parliament. Though on 25th January 2020, 2G services were restored in the valley for verified users, yet this order was short-lived and on the same day for security concerns, the internet was shut down again. Again, on 4th March 2020, an order by the administration of Jammu and Kashmir was passed, wherein the internet could only be accessed using 2G on verified SIM cards.
Another recent incident of internet shutdown was when the Ministry of Home Affairs ordered the temporary suspension of internet services in parts of the National Capital Region (NCR) on 26th January 2021 at the time of violent protests. The internet was suspended at Delhi's border areas including the Singhu border, Tikri border, Ghazipur border, Mukarba Chowk and other areas due to the ongoing farmers’ protests.
Does the internet form part of the fundamental right to free speech and expression?
The recent judgements by the judiciary have become instances of protecting people’s rights and constitutional freedoms including that of access to the internet. In 2019, the Kerala High Court in the case of Faheema Shirin v. State of Keralatook an unprecedented stand and held that the right to internet access was a fundamental right forming part of the Right to Privacy and Right to Education under Article 21.
In January 2020, the Supreme Court declared that the freedom of speech and expression under Article 19(1)(a) and the freedom to practice any profession under Article 19(1)(g) even over the medium of the internet enjoys constitutional protection. This was held in the case of Anuradha Bhasin vs Union of India & Ors. In this case, the petitioner challenged the internet shutdown and movement restrictions in Jammu & Kashmir that restricted journalists from travelling and publishing. This led to violations of Article 19 of the Indian Constitution which guarantees the right to freedom of expression to all. The judgement was delivered by a three-judge bench comprising of Justices N V Ramana, R Subhash Reddy and B R Gavai.
Analysis of Anuradha Bhasin v. Union of India
The petitioner, Ms. Anuradha Bhasin, the editor of the Kashmir Times Srinagar Edition argued that ‘print media came to a grinding halt due to the non-availability of internet services, which is essential for the modern press.’ She also contended that the curtailment of the internet is a restriction on the right to free speech and should be tested based on reasonableness and proportionality. She further argued that the restrictions on the Internet were ex-facie perverse and suffered from non-application of mind. Furthermore, she argued that the orders were based on an apprehension that there would be a danger to a law and order situation but public order is not the same as law and order, and the situation at that time did not warrant the passing of the orders resulting in restrictions.
The Supreme Court in light of the facts stated above said that the objective of the Court was “to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner, and will not delve into the political propriety of the decision taken herein, which is best left for democratic forces to act on.”
The Court in its decision reaffirmed that freedom of expression guaranteed under Article 19 of the Indian Constitution extended to the internet as well. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410, it was held that the right of citizens to screen films is a part of the fundamental right of freedom of speech and expression. Online expression presently has become a major means of information diffusion, it was integral for the enjoyment of freedom of speech and expression guaranteed by Article 19(1)(a), but could also be restricted under Article 19(2) of the Indian Constitution.
The Internet, besides playing a very important role in trade and commerce, is important for e-commerce businesses as well, because they completely rely upon the internet.
Thus, the freedom of trade over the internet is constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6). Although the question of declaring the right to access the internet as a ‘fundamental right’ was not dealt with in this case by the court, neither did the parties argue for the same.
The Indian Constitution allows the Government to restrict freedom of speech and expression [Article 19(1)(a)] under Article 19(2) if the restrictions were prescribed by law and are reasonable, reasons thereby including “interests of the sovereignty, integrity, security, friendly relations with the foreign States, public order, decency or morality or contempt of Court, defamation or incitement to an offence.” The court also said that in cases of complete restriction, it should not excessively burden free speech and expression, and the government has to explain reasons for the other alternatives being inadequate. Ultimately, the decision whether it amounts to complete restriction is a question of fact that is to be determined by the Court based on the circumstances of every case.
The Court agreed that Jammu and Kashmir had since long been afflicted by terrorism. The Court agreed with the argument raised by the government that “modern terrorists relied heavily on the internet, it is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies. The prevalence of the internet provides an easy inroad to young impressionable minds.” [para36] The learned Solicitor General argued that the ‘war on terrorism requires the imposition of such restriction to nip the problem of terrorism in the bud.’ [para 37]
It was further emphasised that in the case of Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353, it held that “no constitutional right can be claimed to be absolute in a realm where rights are interconnected to each other, and limiting some rights in the public interest might therefore be justified ” [para 54]. The Court also found that tension between the rights of people and its limitation is to be resolved by balancing them against each other so that they harmoniously coexist.
The Court stressed upon the standard of proportionality, which guaranteed that a right is not restricted beyond the obligatory limits. Remarkably, the Court rejected the ideology that the government should be prohibited from achieving some public good at the cost of fundamental rights of the citizens. Yet, such a positive stand was not the final decision of the court. Alongside this, the Court defined proportionality as the question of whether “regulating the exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator to achieve the object of the legislation or the purpose of the administrative order, as the case may be.”[para. 53].
The Court then outlined the test of proportionality into 4 major points:
1. The measure restricting the right of the people must have a legitimate goal.
2. It must be suitable for furthering the decided goal.
3. There must not be any less restrictive yet equally effective alternative to the same.
4. The measure must not have a disproportionate impact on the person’s right.
Concluding the judgement, the Court held that the orders of internet shutdown were not reasonable and did not pass the proportionality test as laid down. It said that a complete prohibition perpetually on the internet cannot be accepted. It directed the government to review all orders suspending internet services forthwith. And the made orders, which were not per the law laid down above, must be revoked.
Despite the finding so made, the court did not strike down the orders, rather it had set up a ‘review committee’ to find out about the situation. The review committee as ordered would not only look into the question of whether the restrictions are still in compliance with the requirements of Section 5(2) of the Telegraph Act, 1885 but additionally see whether the orders are proportionate or not. The order suspending internet must not be permissible to delay beyond the period which is utmost necessary. Therefore, the Apex Court allowed the executive to reconsider the imposed restrictions so made by the executive itself.
In another petition filed before the Apex court in May 2020, Foundation of Media Professionals v. Union Territory of J&K and Anr, 2020 SCC 453, to restore 4G network in the union territory of Jammu and Kashmir, the court though agreed to the petitioner’s argument of orders of internet shutdown during a global pandemic being unreasonable and failing the proportionality test of territorial extent, as laid down in the above-discussed case, contrarily ruled out to set up a ‘special committee’ of the executive per se. The court disregarded its own decision as laid in the case of Anuradha Bhasin and step down from its duties onto the executive. Therefore, this abdication by the court completely abandons the principle of checks and balances by asking the executive to review its own orders.
In my opinion, the court should have obtained a better reason from the government for not applying its mind to implement lesser alternatives and question its arbitrary actions in case of implementing internet shutdowns in any part of the country, without giving due regard to the difficulties faced by its people. It should have been consistent with the law laid down in Anuradha Bhasin and struck down the unreasonable internet suspension orders, upholding the principle of checks and balance.
Thus, an evident doubt that appears in the minds of citizens during the ongoing Coronavirus pandemic is whether the national security and integrity in India predominates over the basic human and fundamental rights granted to its citizens. Nevertheless as seen above, internet represents a novel space for accessing fundamental rights by all people. This right to internet access is the right of the digitized 21st century. It is a right, which the society should be able to enjoy universally and indiscriminately like all other rights. Therefore, an absolute ban on the internet would be unreasonable as it has become an integral part of our daily life, wherein all activities are regulated online. Hence, reasonable restrictions must only be placed after a certain legal process is followed and only for a limited period.