| Court | Supreme Court of India |
|---|---|
| Citation | AIR 2020 SC 1308; (2020) 1 SCALE 691 |
| Decided | 10 January 2020 |
| Bench | N.V. Ramana, R. Subhash Reddy and B.R. Gavai |
In short: After communication services were shut down in Jammu and Kashmir in August 2019, a newspaper editor and a Member of Parliament approached the Supreme Court. The Court held that freedom of speech and the freedom to carry on a trade or profession over the internet are protected by the Constitution. It also held that internet shutdowns and Section 144 orders must be proportionate, temporary where relevant, published and open to judicial review.
Facts
The trouble began with a Security Advisory from the Home Department of the Jammu and Kashmir government. It advised tourists and Amarnath Yatris to cut short their stay and return, in the interest of safety. Educational institutions and offices were then ordered to stay shut until further orders. On 4 August 2019, mobile phone networks, internet services and landline connectivity were all discontinued in the valley. Movement was also restricted in some areas.
On 5 August 2019, the President issued Constitutional Order 272. The same day, District Magistrates, apprehending a breach of peace and tranquillity, imposed restrictions on movement and public gatherings under Section 144 of the Code of Criminal Procedure.
Anuradha Bhasin said that journalists could barely move around. The Srinagar edition of the Kashmir Times could not be distributed on 5 August 2019, and she had been unable to publish it since 6 August. Ghulam Nabi Azad said he was stopped from travelling to his constituency and could not communicate with the people there.
Both approached the Supreme Court under Article 32. They asked the Court to set aside the orders shutting down communications, to restore internet, mobile and landline services, and to ensure that journalists could move freely and report. Ms Bhasin also asked for guidelines to protect the media's ability to report and publish.
The Court noted that it would not examine the political propriety of the decision. It would only balance liberty and security.
Issues
- Do freedom of speech and the freedom to practise a profession or carry on a trade extend to the internet?
- What limits must the government respect when it suspends internet services?
- How should the power to pass orders under Section 144 of the Code of Criminal Procedure be used?
- Were the restrictions on the press unconstitutional?
Held
- All orders under Section 144 and orders suspending telecom services, including the internet, must be published, so that affected people can challenge them before the High Court or another appropriate forum.
- Freedom of speech and expression, and the freedom to practise any profession or carry on any trade, business or occupation over the internet, enjoy protection under Article 19(1)(a) and Article 19(1)(g). Any restriction must meet Article 19(2) and (6), including the test of proportionality.
- An order suspending the internet indefinitely is not permitted under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. A suspension can only be for a temporary duration, must be proportionate and must not run longer than necessary.
- Suspension orders are subject to judicial review.
- The Rules did not provide for periodic review or a time limit. Until that gap is filled, the Review Committee under the Rules must review each order within seven working days of the previous review.
- Orders that do not follow this law must be revoked. They must also consider allowing government websites, localised e-banking and hospital services, and other essential services where the internet will not be restored soon.
- Section 144 can be used when danger is merely apprehended, but the danger must be in the nature of an "emergency". It cannot be used to suppress a legitimate expression of opinion or grievance, or the exercise of democratic rights.
- A Section 144 order must state the material facts, show application of mind, and be passed in a bona fide and reasonable manner. The Magistrate must apply proportionality and choose the least intrusive measure. Repetitive Section 144 orders are an abuse of power.
On the press, the Court said that Ms Bhasin gave no evidence that other newspapers were also stopped, while the Solicitor General said others were running. She had also resumed publication. The Court therefore did not go further, but said governments must respect press freedom at all times and that journalists should be accommodated. There was no justification for letting a "sword of Damocles" hang over the press indefinitely.
Why it matters
- It recognises the internet as a medium through which speech, trade and professions are constitutionally protected.
- The government can no longer keep the internet off indefinitely. Suspensions must be temporary, proportionate and reviewable.
- Orders must be published, so ordinary people can challenge them in court.
- Section 144 cannot be used as a routine tool to silence dissent. Magistrates must record reasons and choose the least intrusive step.
- The Court tried to balance liberty and security instead of treating one as always more important.
Exam one-liner
Note: From 1 July 2024, the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act were replaced by the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023. This judgment refers to the old codes; the section numbers are different under the new ones.
Frequently asked questions
Can the government ever suspend the internet after this judgment?
Yes, but only under the 2017 Suspension Rules, for a temporary period. The order must be proportionate, must not last longer than necessary and is open to judicial review. A Review Committee must also review it within seven working days of the previous review.
Did the Court decide that the press was unlawfully restricted?
No. It found no evidence that the restrictions affected others in the same way, and noted that Ms Bhasin had resumed publication. It did say that governments must respect press freedom and accommodate journalists.