Review orders imposing curbs within week,access to internet fundamental right: SC asks JK

New Delhi, Jan 10: A ray of hope has rekindled after Supreme Court on Friday said access to Internet is a fundamental right under Article 19 of the Constitution and asked the Jammu and Kashmir administration to review all orders imposing curbs in the Union Territory within a week.

A five judge bench headed by Justice NV Ramana asked the J&K administration to restore Internet services in institutions providing essential services like hospitals and educational places.

The bench, which also comprised justices BR Gavai and R Subhash Reddy, said access to Internet is a fundamental right under Article 19 of the Constitution. The court said subject to some restrictions freedom of press is a valuable and sacred right.

The court asked authorities to immediately consider allowing government websites, limited e-banking facilities and other essential services in those regions where internet services were not likely to be restored immediately.

Complete clampdown should only be imposed when it is necessary and unavoidable, said Justice NV Ramana who headed the bench.

This is the first time that the Supreme Court has read the right to access the Internet as part of Article 19 (1) (a) of the Constitution — the right to freedom of speech and expression, and Article 19 (1) (g) — the right to practice any profession, trade or occupation.

“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 court said.

Previously, the Kerala High Court in September 2019 had declared access to the Internet as a fundamental right.

Although the Supreme Court has ruled that indefinitely shutting down the Internet would be unlawful, it stopped short from declaring the shutdown in Jammu and Kashmir, the longest Internet shutdown in India, as illegal.

The five-judge Bench has instead asked the government to review the orders that mandated the Internet shutdown.  The court also said that even a temporary shutdown of the Internet cannot be “arbitrary”, and will be subject to judicial review.

The court said that like any curbs on free speech, restricting Internet access must also be proportional — as laid out under Article 19 (2) of the Constitution.

The verdict came on a batch of pleas which challenged the curbs imposed in Jammu and Kashmir after Centre’s abrogation of Article 370 on August 5 last year. The batch of pleas is different from another set of petitions challenging constitutional validity of abrogation of Article 370.

The five -judge bench said Section 144 CrPC (prohibitory orders) cannot be used indefinitely to suppress freedom of speech and expression and difference of opinion. It said magistrates, while passing prohibitory orders, should apply their mind and follow doctrine of proportionality.

The apex court also spoke on the right of citizens to express dissent without resorting to violence saying prohibitory orders under Sec 144 of the CrPC cannot be used as tool to suppress it.

On November 21, the Centre had justified restrictions imposed in J&K after the abrogation of provisions of Article 370 and said that due to the preventive steps taken, neither a single life was lost nor a single bullet fired.

The Centre had referred to terror violence in the Kashmir Valley and said that for the past so many years terrorists were being pushed through from across the border, local militants and separatist organization had held the civilians captive in the region and it would have been “foolish” if the government would not have taken preventive steps to secure the lives of citizens.

‘Respect freedom of press’

Press Trust of India

New Delhi, Jan 10: Freedom of press is a requirement in any democratic society for its effective functioning and governments are required to respect this at all times, the Supreme Court said on Friday.

The apex court said importance of the press is well established and is a valuable and sacred right enshrined under the Constitution.

“This right is required in any modern democracy without which there cannot be transfer of information or requisite discussion for a democratic society,” a bench headed by Justice N V Ramana said.

The observation came while delivering a judgement on a plea filed by Anuradha Bhasin, Executive Editor of Kashmir Times, who had submitted that since August 6 the newspaper”s Kashmir edition has not been printed and published as complete and absolute restrictions on communication services and movement have resulted in the imposition of a de facto blockade on media activities, including reporting and publishing on the situation in the valley.

However, Solicitor General Tushar Mehta told the court that editors of Kashmir Times chose not to publish their newspaper from Srinagar.

The apex court said that no evidence was put forth to establish that other individuals were also restricted in publishing newspapers in the area.

“Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self¬ serving purpose,” it said.

“In view of these facts, and considering that the aforesaid petitioner has now resumed publication, we do not deem it fit to indulge more in the issue than to state that responsible governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely,” the court said.

‘Publish all orders on restrictions, including suspension of internet’

Press Trust of India

New Delhi, Jan 10: The Supreme Court Friday directed the Jammu and Kashmir administration to publish all orders related to restrictions, including suspension of telecom and internet services, to enable the affected persons to challenge them before the high court or other forum.

The court noted that though it was asked to go into the question of validity of orders, restricting movement and communication, passed in Jammu and Kashmir by various authorities, the orders were not placed before it.

While the petitioners and intervenors claimed that the orders were not available with them, the authorities cited difficulty in producing all of them before the court and only placed sample orders, the court said.

“While the State initially claimed privilege, it subsequently dropped the claim and produced certain sample orders, citing difficulty in producing all the orders before this Court. In our opinion, this is not a valid ground to refuse production of orders before the court,” a 3-judge bench, headed by Justice N V Ramana, said in its 130-page verdict.

The bench, also comprising Justices R Subhash Reddy and B R Gavai, said: “The respondent State/ competent authorities are directed to publish all orders in force and any future orders under Section 144 CrPC and for suspension of telecom services, including Internet, to enable the affected persons to challenge it before the High Court or appropriate forum.”

The judgement came on pleas filed by Anuradha Bhasin, Executive Editor of Kashmir Times and Congress leader Ghulam Nabi Azad which challenged the curbs imposed in Jammu and Kashmir after the Centre”s abrogation of provisions of Article 370 on August 5 last year.

These pleas were different from another set of petitions which have challenged the constitutional validity of abrogation of Article 370, being heard by a separate 5-judge Constitution bench which will resume its hearing on January 21.

The bench said when a challenge is made regarding curtailment of fundamental rights as a result of any order passed or action taken by the State which is not easily available, it should take a proactive approach in ensuring that all the relevant orders are placed before the court, unless there is some specific ground of privilege or countervailing public interest to be balanced, which must be specifically claimed by the State on affidavit.

“In such cases, the court could determine whether, in the facts and circumstances, the privilege or public interest claim of the State overrides the interests of the petitioner. Such portion of the order can be redacted or such material can be claimed as privileged, if the State justifies such redaction on the grounds, as allowed under the law,” it said.

The bench said while the non-availability of orders was not denied by the State, they did not produce it and when the court on a previous occasion asked them to produce the orders, the authorities places only sample orders.

The authorities cited difficulty in producing the numerous orders which were being withdrawn and modified on a day­-to-­day basis and had also claimed that the plea to produce orders by the petitioners was an expansion of the scope of the petitions.

The various petitions has direction to the authorities to produce the orders by which movement of all persons has been restricted since August 4, 2019 and the orders by way of which communication has been blocked there.

Giving the reasoning that mandates it to order production of the orders passed by the authorities, the court said Article 19 of the Constitution has been interpreted to mandate right to information as an important facet of the right to freedom of speech and expression.

“A democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know. Moreover, fundamental rights itself connote a qualitative requirement wherein the State has to act in a responsible manner to uphold Part III of the Constitution and not to take away these rights in an implied fashion or in casual and cavalier manner,” it said.

There is no dispute that democracy entails free flow of information, it said adding that there is not only a normative expectation under the Constitution but also a requirement under natural law, that no law should be passed in a clandestine manner. 

‘Freedom of speech, right to business through Internet constitutionally protected’   

Press Trust of India       

New Delhi, Jan 10: Expressing oneself through the medium of Internet is an integral part of fundamental right to speech and expression under Article 19 of the Constitution and any restrictions imposed on it should be reasonable, the Supreme Court on Friday held.

The top court said that right of trade and commerce through Internet is also constitutionally protected subject to reasonable restrictions.

It said that complete blocking or prohibition cannot be accepted by the court and achievement of peace and tranquillity within the erstwhile state of Jammu and Kashmir requires a multi-faceted approach without excessively burdening the right to freedom of speech.

A bench of justices N V Ramana, R Subhash Reddy and B R Gavai said, “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) (freedom of speech and expression) and Article 19(1)(g) (right to practise any profession, or to carry on any occupation, trade or business).”

The bench said 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.

It added that in today”s world the internet stands as the most utilised and accessible medium for exchange of information but there is a consistent criticism that the development of technology is not met by equivalent movement in the law.

The bench said in a catena of judgments, the apex court has recognised free speech as a fundamental right and “expression through the Internet has gained contemporary relevance and is one of the major means of information diffusion.”

Dealing with trade and commerce over Internet, the bench said that the globalisation 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,” it said.

The top court”s verdict came on a plea of Congress leader Ghulam Nabi Azad, Kashmir Times editor Anuradha Bhasin and others who challenged the restrictions imposed in Jammu and Kashmir post August 5, last year decision of Centre abrogating Article 370.

They had contended that the restrictions under Article 19 of the Constitution cannot mean complete prohibition.

“In this context we may note that the contention cannot be sustained in light of a number of judgments of this court wherein the restriction has also been held to include complete prohibition in appropriate cases,” it said.

Referring to the situation of Jammu and Kashmir, the bench said that erstwhile state has been a hot bed of terrorist insurgencies for many years.

Noting the J&K”s submission, the top court said that since 1990 to 2019 there have been 71,038 recorded incidents of terrorist violence, 14,038 civilians have died, 5292 security personnel were martyred, 22,536 terrorists were killed.

It added that modern terrorism heavily relies on the internet and the operations do not require substantial expenditure, are not traceable easily and the internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies.

The top court there is no doubt on power of government to restrict under the Constitution but the question is about the extent, the degree of restriction and scope both territorially and temporally which must stand in relation to what is actually necessary to combat an emergent situation.

It said that doctrine of proportionality must be followed by the authorities before passing any order intending on restricting fundamental rights of individuals and they must assess the existence of any alternative mechanism.

“It is undeniable that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. Lastly, since the order has serious implications on the fundamental rights of the affected parties, the same should be supported by sufficient material and should be amenable to judicial review,” it said.

The top court rejected the contention of J&K administration that they lack technology for providing selective internet access saying if the said argument is accepted then the government would have a free pass to put a complete internet blockage every time.

“Such complete blocking/prohibition perpetually cannot be accepted by this Court,” it said, adding, “a decision which curtails fundamental rights without appropriate justification will be classified as disproportionate”.

It accepted the contention of Jammu and Kashmir that the internet could be used to propagate terrorism thereby challenging the sovereignty and integrity of India.

“This Court would only observe that achievement of peace and tranquillity within the erstwhile State of Jammu and Kashmir requires a multi-faceted approach without excessively burdening the freedom of speech,” it said.

(Except for the headline, this story has not been edited by The Kashmir Monitor staff and is published from a syndicated feed.)