The Right to the Internet: A Persistent Conundrum

“To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.” - Frederick Douglass

Mitushi Garg comments on the observations of the Hon’ble Supreme Court in the case of Anuradha Bhasin and Anr. v. Union of India pertaining to the right to access the Internet.

Introduction

As network disruptions became an increasingly common phenomenon around the globe, India rose to infamy as the internet shutdown capital of the world. This violated Article 19 of the Universal Declaration of Human Rights (UDHR), which states that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” After the contentious abrogation of Article 370, Kashmir continues to struggle its way out of the Stone Age and is still deprived of complete access to the Internet. However, the recent pronouncements by the Indian judiciary, recognizing the pivotal role of the Internet, have become a beacon of hope for the proponents of human rights and constitutional freedoms.

Once such judgment has been rendered by the Hon’ble Supreme Court in the matter of Anuradha Bhasin and Anr. v. Union of India. The petitioners herein had approached the Hon’ble Court under its writ jurisdiction with the prayer to set aside or quash orders, notifications, directions and circulars that discontinued mobile phone networks, internet services and landline connectivity with restrictions on movement in the valley.

This article attempts not only to discuss the observations of the Court pertaining to the right to access the Internet in the aforesaid matter, but also lay down an analysis of the various other pronouncements made in this respect and to present the implications thereof.

Interpretation of Article 19

It was a major contention of the petitioners in the case of Anuradha Bhasin that the impugned restrictions affected the right to freedom of speech and expression and the right to free trade and avocation. To this effect, the Court made observations with respect to the nature of fundamental rights (noting particularly the ambit of Article 19, which provides for a multitude of freedoms to an Indian citizen).

Fundamental Rights are the core of the Indian Constitution since they define the existence of individuals and govern their relationships with the State. The present article deals exclusively with Article 19.

Article 19 as a Right to Freedom, lays down six rights available to an Indian citizen, - freedom of speech and expression, to practise any profession, or to carry on any occupation, trade or business, to assemble peaceably and without arms etc. in clause (1) therein. However, these rights are not absolute, as each is subject to the restrictions prescribed in corresponding clauses from Article 19(2) to Article 19(6). It has been understood that the fundamental rights under the Part III of the Indian Constitution are prescribed as a negative list, so that “no person could be denied such right until the Constitution itself prescribes such limitations”.

Even though Article 19 is not absolute, the limitations to be imposed on the rights have to stand the ‘Test of Proportionality ’, which is “inherently embedded” in the Constitution under the realm of the ‘Doctrine of Reasonable Restrictions’. The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, being of sufficient importance to warrant overriding a constitutionally protected right or freedom. The measures imposed should be necessarily and rationally connected to the purpose sought to be achieved. There needs to be a proper relation (“proportionality stricto sensu” or “balancing”) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right. The least restrictive measure should be adopted with procedural guarantees against abuse of such interference.

The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of an emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. Since the restrictions imposed have serious implications on the fundamental rights of the affected parties, they should be supported by sufficient material and should be amenable to judicial review.

Freedom of Speech

Freedom of speech and expression is laid down as a Fundamental Right under Article 19(1)(a) of the Indian Constitution. The ‘expression’ is protected over different media and includes the right to be informed and right to know. This is necessary to imbue a feeling of protection of expansive connectivity.

It includes the right to disseminate information to a wide section of the population. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial.

Given the present times, the contemporary relevance of the internet as a means of information diffusion cannot be understated.

The lauded Kerala High Court judgment recognized the right to have access to the Internet as a part of the right to education as well as the right to privacy under Article 21 of the Constitution of India. It went on to hold that a rule or instruction which impairs the right to access to the Internet, (a fundamental freedom and a tool to ensure the right to education of the students), cannot be permitted to stand.

While this judgment could have been seen as a guiding light for the Supreme Court while disposed of petitions in the case of Anuradha Bhasin and Anr. v. Union of India, the Supreme Court treaded on the current clampdown of internet and the consequential effect on the fundamental rights in a rather cautious manner.

Law Governing Internet Shutdowns

The procedural mechanism contemplated for restrictions on the Internet is found under the Information Technology Act, 2000 (IT Act), the Criminal Procedure Code, 1973 (Cr.P.C) and the Telegraph Act, 1885 (Telegraph Act). Section 69A of the IT Act read with the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 allows blocking of access to information. The aim of the section is not to restrict/block the internet as a whole, but to block access to particular websites on the internet.

Prior to 2017, any measure restricting the internet generally or even shutting down the internet was passed under Section 144, Criminal Procedure Code (Cr.P.C). The position has changed since 2017, with the passage of the Suspension Rules under Section 7 of the Telegraph Act. The Rules state that an order passed thereunder should be a reasoned order. The order should be forwarded to a Review Committee which has been set up under the Suspension Rules, within one working day. The Review Committee should undertake a periodic review of the orders passed and record its findings of whether the order issued under the Suspension Rules is in accordance with the provisions of the main statute, viz., Section 5(2) of the Telegraph Act.

The orders under consideration are subject to the satisfaction of the Government or the authority concerned as to the existence of a “public emergency.” A “public emergency” has been held to mean that which raises problems concerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or the prevention of incitement to the commission of an offence.

The orders should be made freely available, through some suitable mechanism, since it affects lives, liberty and property of people. This should also be should be amenable to judicial review.

The restrictions contemplated under the Suspension Rules are temporary in nature. The same must not therefore be allowed to extend beyond that time period which is necessary.

The Supreme Court dictum

The Supreme Court, in the present petition, had limited issues to be adjudicated upon, the most important of which were as follows -

• Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?
• Whether the Government’s action of prohibiting internet access is valid?

The Court acknowledged that free flow of information is not only a normative expectation under the Constitution, but also a requirement under natural law, and thus no law should be passed in a clandestine manner unless there is some specific ground of privilege or countervailing public interest to be balanced, which must be specifically claimed by the State.

The Court relied on Ram Jethmalani v. Union of India, to mandate the publication of orders that have far-reaching consequences on the rights and liberties of individuals. It specifically held that the government’s claim (that it was too difficult to produce multiple orders being issued and withdrawn on a day to day basis) is not a valid reason to refuse disclosure of orders.

The Court held that a complete blocking/prohibition perpetually on the Internet cannot be accepted. The Review Committee must therefore 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. It must also look into the question of whether the orders are still proportionate. The order suspending internet must not be allowed to extend beyond that time period which is necessary.

Having regard to the burgeoning growth of the internet, the Hon’ble Court held that 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.

It also noted that the internet is a very important tool for trade and commerce. 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).

Thus, the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet, is constitutionally protected.

The Court did not rule on the present state of affairs in the Valley but allowed the executive to reconsider the restrictions in the light of guidelines laid down.

Conclusion

The Supreme Court has laid down the jurisprudence in the present matter and has provided for a balance to be achieved between individual liberties and national security concerns. The war on terrorism does not warrant suspension of freedom of speech if there is no imminence of violence. The Court has ensured safeguards against arbitrary suspension of telecom services prospectively. The need to issue reasoned orders, to make them public and subject them to a periodic review shall help protect the fundamental freedoms of individuals from attack.

However, the Court has failed to apply the law to the facts of the instant case. Thus, the directions issued fall short to relieve the misery of people of Kashmir presently. The responsibility of following court orders has been directed to the state, who in this case is very the perpetrator of this deprivation of rights. It is also pertinent to note that the Court has only provided for the right to freedom of speech and expression and the right to carry on any trade or business using the medium of internet and not for the right to the internet itself. This raises a paradoxical situation wherein the fulfilment of the former rights is based upon the latter, which has not been declared to be a fundamental right.

At the most, it becomes an academic exercise and coherence can probably be achieved by future pronouncements of the Court.

The importance of the Internet from strategic to mundane affairs cannot be downplayed. In conclusion, the following observations of the Hon’ble Supreme Court warrant attention -
“Law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society. Non-recognition of technology within the sphere of law is only a disservice to the inevitable.”