ACCESS TO INTERNET AS A FUNDAMENTAL RIGHT
ANURADHA BHASIN VS UOI CASE
Authored by - Shubhankit Gupta
Amity Law School, Noida
Amity University, Uttar Pradesh
This legal writing wouldn’t have seen the light of the day without the help of certain people to whom I would like to express my gratitude.
Firstly I would like to thank the Additional Director, ALSN (Prof.) Mr. Aditya Tomar, who provided me with continuous guidance, support and encouragement throughout the project. His tips and explanation made this project a cake box for me.
Secondly I would like to thank, my faculty guide, Ms. Tusha Singh, for being a constant support without whom this work wouldn’t have been possible
Now I would like to thank the Library Staff , Family, Friends and all the dear ones without whose constant support this project would never ever have been possible.
Last but not the least I would like to thank GOD for helping me to bring out and understand the true meaning of the topic given to me.
TABLE OF CONTENTS
DISCUSSION ON ISSUES
The Supreme Court of India declared that orders for online shutdown should satisfy the test of need and proportionality and that an unending suspension of internet providers would be illegal under Indian law. In order to protect public demand, online and development limitations were imposed on August 4, 2019, in the Indian region of Jammu and Kashmir. On second thought, the Court advised the public authority to review the closure orders against the standards outlined in the ruling and lift those that were excessive or lacked a temporary cut-off. Ultimately, however, the Court decided not to lift the online restrictions. The Court reiterated how much it valued the opportunity to express itself online. However, established certainty may be limited in the interest of public safety. The Court held that however the Public authority was enabled to force a total web closure, any order(s) forcing such restrictions must be unveiled and was dependent upon legal survey.
The issue of Jammu and Kashmir, an Indian region adjoining Pakistan, has been debated between the two countries for many years. According to Indian Constitutional Article 370, the region had exceptional status, had its own constitution, and Indian citizens from other states were not allowed to own land or other property there. Jammu and Kashmir lost its exceptional status, which it had had since roughly 1954, when the Indian Government passed the Constitution (Application to Jammu and Kashmir) Order, 2019, which totally brought it into conformity with all provisions of the Indian Constitution.
In the years preceding to this Constitutional Decision, the Indian government enforced severe limitations on online communication and growth opportunities. The Union Administration, Home Division, and Legislature of Jammu and Kashmir urged travellers and pioneers of the Amarnath Yatra to depart the Indian state of Jammu and Kashmir on August 2. Schools and places of employment were consequently asked to close until further notice. Cell phone companies, internet service providers, and the local landline network were all shut down on August 4, 2019. Additional limits on the right to free speech and assembly were put into place by the District Magistrates, who justified their actions by citing Section 144 of the Code of Criminal Procedure.
Journalists' ability to travel and publish was hampered by the internet shutdown and movement restrictions (collectively referred to as "restrictions"). Because Article 19 of the Indian Constitution provides the right to freedom of expression, the limitations were challenged in court as being in violation of that provision. The following petitions contesting the validity of the internet blackout and mobility restrictions were examined by the Supreme Court of India in this context:
According to the Attorney General, the limitations were necessary to stop terrorist attacks given the State of Jammu and Kashmir's lengthy history of domestic militancy and cross-border terrorism. The Attorney General remembered that such actions had already been taken, for instance in 2016 following the death of a terrorist there.
A state's first and foremost responsibility is to provide security and defend the lives of its residents, the Solicitor General said in a reiteration of the historical necessity defence. Additionally, he said that the petitioners' stated facts were inaccurate and inflated the implications of the limitations. He made particular notice of the fact that freedom of movement had never been limited, that limits had only ever been put in place temporarily and were quickly lifted, and that all publications, television channels, and radio stations were operational.
The Solicitor General also contended that the matter was the topic of speculative discussions in Jammu and Kashmir, including aggressive statements and communications, even before the Constitutional Order for repealing Article 370 had been published. Because the national security problems were involved, local government officials determined that the limits were appropriate, and courts had no authority to challenge their decision.
The Solicitor General argued that the internet was never censored in Jammu and Ladakh specifically with regard to the communications and internet shutdown. Social media, which allows users to send messages and talk to many people at once, was mentioned as another tool that may be used to instigate violence. He asserted that the internet made it possible to disseminate fabricated information or photos that were later used to foment violence. He also asserted that anyone might readily buy firearms and other substances on the "dark web."
The Solicitor General dismissed the contention that free discourse norms as they connected with papers applied to the web because their disparities were excessively perfect. He made sense of that while papers just permitted one-way correspondence, the web made it conceivable to impart in the two bearings, making spread of messages extremely basic. He reasoned that it was unrealistic to boycott just specific sites or portions of the Web while permitting admittance to different parts, as the public authority learned in 2017.
The arguments put out by the petitioners and the government were then broken down into five issues by the court:
DISCUSSION ON ISSUES
The Supreme Court started by expressing that considering current realities of the current case, the goal of the Court was to "to find some kind of harmony between the freedom and security concerns so the right to life is secured and delighted in the most ideal way," and leave the "legitimacy" of the orders at issue for "vote based powers to follow up on."
1. Is the government immune from having to produce all of the restriction orders?
The State was required to present the orders establishing the limits, the Court ruled. The opening paragraphs made notice of the difficulties it had in determining the legitimacy of the constraints since the officials had refused to make the orders establishing the aforementioned restrictions public. The Court reasoned that in order to fulfil the right to redress as stipulated in Article 32 of the Indian Constitution, the State has an obligation to disclose information., citing the precedent in Ram Jethmalani vs Union of India. In addition, it has been held that the right to information is a crucial component of the right to freedom of speech and expression under the interpretation of Article 19 of the Indian Constitution. A democracy, which is committed to openness and accountability, the Court continued, "necessarily compels the production of orders since it is a fundamental human right to know." [para. 15] These basic rights obligated the State to safeguard them properly and forbade the State from arbitrarily removing these rights. The Court again made sure that any law should not be passed in secret due to the potential risk such actions may pose to democracy. James Madison's quote, "A popular government, without popular intelligence, or the means of getting it, is merely a prelude to a comedy or a tragedy, or maybe both," was used by the Court to illustrate its argument Because ignorance will always be ruled by knowledge, a people who desire to be their own rulers must arm themselves with the power that knowledge offers. Because of this, the State was required to take proactive measures to make any law curtailing basic rights public, unless there was a compelling public interest in keeping it secret. Even in these situations, the Court would be the arbiter of whether elements of the order might be concealed or redacted by weighing the State's privileges against the right to knowledge. In the current instance, the State first asserted privilege, but later withdrew it and disclosed part of the orders while claiming that all could not be provided due to unidentified obstacles. Such reasoning was not an acceptable basis in the Court's eyes.
2. Does the freedom of speech, expression, and the right to engage in any vocation, trade, or business through the Internet fall under the categories of basic rights covered by Articles 19(1)(a) and (g) of the Constitution?
First, the Court reaffirmed that the internet was under the protection of the freedom of expression granted by Article 19 of the Indian Constitution. The Supreme Court cited its lengthy legal precedent that expanded safeguards to include new forms of communication. The Supreme Court declared in Indian Express vs Union of India that freedom of expression also includes freedom of the print media. It was held that it was a basic right of the people to watch movies as per the freedom of expression is concerned in Odyssey Communications Pvt. Ltd. vs. Lokvidayan Sanghatana. Online expression has grown to be one of the main channels for disseminating information, making it essential to exercising the freedom of speech and expression granted by Article 19(1)(a), while it might potentially be constrained under Article 19(2) of the Constitution.
In like manner, the Web likewise assumes a vital part in exchange and trade, and a few organizations were totally subject to the web. Subsequently the freedom of exchange and business by utilizing the web was likewise naturally safeguarded under Article 19(1)(g), dependent upon the restrictions gave under Article 19(6). However, because none of the parties to the case made that argument, the court did not go so far as to declare that the freedom to access the internet is a basic right. The Court then debated whether and to what extent freedom of expression may be constrained. According to Article 19(2) of the Indian Constitution, the Government may impose limits on freedom of expression as long as they are legal, reasonable, and carried out with good cause. The Constitution specifies a comprehensive list of permitted boundaries, including "interests of the sovereign, integrity, security, mutual trust with the foreign States, civil order, morality or decency or contempt of the Court, defamatory or incitement to a crime". The Court came to the conclusion that limitations on free speech and expression might enact outright bans after evaluating its case law regarding the applicability of Article 19(2). In these situations, a blanket ban shouldn't unduly restrict free expression, and the government must justify why less stringent alternatives wouldn't suffice. Last but not least, the Court will decide in each case's particular facts whether a limitation constitutes a total prohibition.
The geographical location of the limits was then discussed by the Court. It concurred with the government that terrorism has long been a problem in Jammu and Kashmir. The Court observed that contemporary terrorists made extensive use of the internet to spread misinformation and propaganda, collect money, and enlist new supporters for their cause. In order to "nip the problem of terrorism in the bud," the Indian authorities said that the introduction of the restrictions was necessary for the "war on terrorism." [para. 37] The Court stated that "the war on terror" could not be viewed as a scenario involving law and order since it went beyond territorial conflicts and into other areas that affected daily life.
COMPARATIVE ANALYSIS OF DIFFERENT COUNTRIES
The Court came to the conclusion that speech that calls for impending violence is not protected by the First Amendment after reviewing the U.S. First Amendment and its case law from 1863 to the present. The Court emphasised how several times the judiciary and political authorities in the United States have curtailed free speech in the name of national security. The earliest of these instances, Vallandigham involved a man who was found guilty and sentenced to jail for openly criticising the American Civil War as "wicked, cruel, and pointless." In Abrams v. United States, Justice Holmes ruled that the government of the United States has the right to retaliate against speech that clearly and immediately poses a threat. He added that this right "is considerably stronger during battle than during peace because hazards that do not exist at other times become prevalent during war. [para. 40] The US Supreme Court said that the "societal value of speech must, on times, be subjugated to other values and concerns" in Dennis v. United States, [para. 41] The US Supreme Court ruled in Brandenburg v. Ohio that the state can only penalise advocacy of criminal behaviour if it wants to encourage and is likely to provoke "imminent lawless action”. Last but not least, the Indian Court remembered that US Attorney General Ashcroft chastised anyone who questioned the loss of basic rights as a result of the war on terror in the post-9/11 context. " The following is my response to those who "frighten peace-loving people with phantoms of lost liberty: Your techniques only favour terrorists since they erode our sense of national unity and weaken our resolve," the statement reads specifically. They arm the adversaries of America. The court remembered its previous ruling in Modern Dental College & Research Centre v. State of Madhya Pradesh, in which it determined that no constitutional right could be considered absolute given the interconnection of all rights and that it may thus be curtailed. In that ruling, the Court also discovered that when basic rights are in conflict, they must be weighed against one another in order for "them to happily coexist with one another." [para. 55]
Similar to the First Amendment, the Indian Constitution permits the government to impose limits on freedom of expression, but these limits must be reasonable and balanced. The Court emphasised the importance of the proportionality requirement in ensuring that a right is not constrained in excess of what is required. Nevertheless, the Court urged prudence in striking a balance between liberty and national security and rejected the idea that a government should not be allowed to advance a public good at the expense of basic rights. All things considered, the Court communicated alert at offsetting public safety with freedom and dismissed the idea that a government ought to be disallowed from accomplishing a public decent at the expense of key privileges. In light of this, the Court stated that the question of proportionality is whether "regulating the exercise of fundamental rights, the legislature or the administrator has made the appropriate or least restrictive choice of measures so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be." [para. 53] The Supreme Court then went on to compare and contrast the proportionality standards utilised by Indian, German, and Canadian courts in great detail. When it came to resolving issues involving limitations on basic rights, it was discovered that while there was consensus that proportionality was the main instrument to attain judicial balance, there was no consensus that proportionality and balancing were interchangeable. The Court then explained how it interprets the proportionality test:
1.The objective of the restriction should be authentic.
2.The restriction should be essential.
3.The specialists should consider on the off chance that elective measures to the restriction exist.
4. It is necessary to use the least restrictive option.
5. A judge must be able to review the limitation.
According to the principle of proportionality, a limitation must be adapted to the territorial scope, emergency level, urgency level, length of the restrictive measure, and kind of restriction. [para. 71]
3. Whether the government's decision to forbid access to the internet is legal.
After outlining the concepts of reasonableness and proportionality, the Court evaluated the limitations placed on the right to free expression online. It inside and out dismissed the State's legitimization for an all-out prohibition on the web since it missing the mark on innovation to specifically obstruct internet providers as tolerating such rationale would have given the State go-ahead to totally boycott web access like clockwork. The Court did, however, acknowledge that there was "sufficient merit in the Government's assertion that the internet could be used to spread terrorism, thereby questioning the independence and sovereignty of India," and that it was necessary to assess how much the restriction restricted free speech in order to make that determination.[para 76]
The Court noted that both fundamental and procedural considerations must be made in order to decide whether the network suspension was lawfully justified. There are two components to the procedural system. The contractual aspect between Internet service providers and the government comes first. Second, there is the legal need set out in the Telegraph Act, the Code of Criminal Procedure, and the Information Technology Act of 2000. The latter was the main subject of the Court's examination because it directly related to the issue at hand.
Following the passage of the Suspension Rules under Section 7 of the Telegraph Act in 2017, the government was given the authority to impose restrictions on telecom services, including internet access, as long as certain conditions were met. Only the Secretary to the Government of India in the Ministry of Home Affairs or the Secretary to the State Government in charge of the Home Department may issue such suspension orders. In unavoidable situations, another government of India official not below the rank of a Joint Secretary may issue the directives as long as the relevant authority authorises them within 24 hours of issuing. The suspension cannot be lifted for more than 24 hours without authorisation. The orders should incorporate explanations behind the suspension and its duplicate should be shipped off a Survey Council comprising of senior State authorities. The reasons shouldn't just make sense of the need of the suspension yet in addition the "undeniable" situation which required the request.
However, only situations of public emergency or in the interest of public safety were allowed for suspension orders under Section 5(2) of the Telegraph Act. The Court concluded as a result that in order to issue a suspension order, the Government must first identify that there is a public emergency and not any another form of emergency is present in the current scenario. The Telegraph Act does not define the term "public emergency," but it has been made clear that its meaning may be deduced from its usage when the phrase "in the interest of public safety" immediately follows it. [para 92]
The Supreme Court observed that different people define emergencies differently. The International Covenant on Civil and Political Rights, for instance, states in its Article 4 that "[I]n time of public emergency which threatens the survival of the nation and the existence of which is formally announced...," Article 15 of the European Convention on Human Rights uses like wording when it states that " Among other things, "in event of war or other national emergency affecting the existence of the country". The only requirement is that the "public emergency" should be of a serious character and be evaluated on a one to one/ case-by-case basis may be mentioned. [para. 93]. Even though the Suspension Orders do not necessitate public release or notices of the orders, the Court emphasised that it is a well-established constitutional and natural equality principle that the public should be aware of a government order, particularly if it has an impact on individual lives, freedoms and rights, and property. According to Article 226 of the Indian Constitution, an offended party has a basic right to challenge suspension decisions, the Court maintained.
The Court found it necessary to state once more that "full wide suspension of telecom services, whether it the Internet or other services, must be considered by the State only if "necessary" and "unavoidable," being an extreme step. The State is required to determine if an alternative, less invasive solution exists in order to further the same. [para. 99]
The Suspension Rules do not specify the maximum time a suspension order may be in effect, the Court observed. However, the Court concluded that an indefinite suspension is unlawful after taking the concept of proportionality into account. The Court determined that the Review Committee should decide the duration of a shutdown and guarantee that it wouldn't last longer than what was required because the Suspension Rules were silent on the subject.
Eight orders were provided to the Court by the State. The Inspector General of Police approved four, while the government of Jammu and Kashmir approved the remaining four. The Solicitor General clarified that while certain limitations had been loosened, ongoing assessments of the ground situation had been made by the authorities. The Court acknowledged that the threat to public safety could not be disregarded, but added that any additional limits would need to be put in place in accordance with a fresh ruling. Since the Court couldn't see all orders to comprehend which were as of now not basically and couldn't evaluate the public request circumstance, it "formed the help in the usable piece." [para. 102]
4. Whether the movement limitations imposed in accordance with Section 144 of the Code of Criminal Procedure were lawful.
In order for Section 144 of the Code of Criminal Procedure to be legitimised, the petitioners claim that the State had to show that the proposed restriction "would be an action which will be likely to create interference, irritation or injury to any person or will probably trigger disturbance of the public calm, and the Government could not have passed such orders in expectation or on the basis of a mere suspicion." [ para. 103] The State claimed that "the turbulent past, overwhelming information about external aggression even in the public domain, evil separatist operations, and the inflammatory words issued by political leaders, formed a compelling circumstance which compelled issuing of orders under Section 144." [ para. 104]
The Court stated that Section 144 is one of the tools available to the State to keep the peace and that it may be used in urgent situations involving annoyance or perceived threat. As a result, it enables the State to cope with impending risks to public order by taking aggressive action. The Section includes several safeguards to prevent abuse, including identification of the person or people whose rights may be restricted, determining the length of the restriction, and an assessment by a magistrate to determine whether there were sufficient grounds for restrictions under the Section.
Legal point of reference demonstrated that restrictions under Section 144 can't be forced just on the grounds that there was probability or propensity of risk, yet just to promptly forestall explicit demonstrations that might prompt risk. The restriction could be forced on a whole region on the off chance that it contains gatherings upsetting public request. It's unlawful to impose endless limits under Section 144. Under Article 226 of the Constitution, leader orders made in accordance with Section 144 were susceptible to legal review. The State cannot use force to impose boring laws because that would be abusing its power.
The Petitioners further argued that, in accordance with Section 144, adhering to "the rule of law" would justify fewer limits than "public request”. The rule of law was represented by the largest circle, with public requests and security of the state represented by the next and smallest circles, respectively, by the Court as concentric circles. [para. 120] Thus, allowing for the inconvenience of limitations to protect the rule of law would increase the government's ability to impose restrictions. Additionally, not all violations of the rule of law undermined popular demand.
The Court, in any case, concurred that there might be times when difficult to recognize the people might break public request and the individuals who don't represent a danger. " "A general request is hence legitimate yet in the event that the action is too broad, the request might be addressed by proper solutions for which there is more than adequate arrangement in the law." [para, 124]
Although the Court did state that "orders issued under Section 144 of the Code of Criminal Procedure are significantly influencing the major privileges of the general public as a whole. "Such authority would lead to serious crime if utilised carelessly and recklessly”. [para. 129] Therefore, it is necessary to show the material facts asking for the abolition of such orders. The Court agreed that the State is in the greatest position to assess risks associated with public requests, but it was necessary to demonstrate the material facts in order to qualify a request under Section 144, which allows for judicial review and authentication of the request's legitimacy. The danger's evident approach and whether invoking Section 144 was the proper course of action to prevent impending harm are important considerations. The right and limitation from one perspective should be balanced against the freedom and responsibility from the other, and any limits should be fair, for instance "never permitted to be inappropriate whether in nature or in timeframe." [para. 39].
Even if the limits may no longer apply, the court said that it cannot ignore lawlessness in this case since the major concern isn't just what happened in Jammu and Kashmir but also a tremendous condition of wariness. The Court made sure that the government should uphold the law if it feels that there is risk involved for the safety of the public.
The Court argued that the authority granted by Section 144 might be applied in situations when there is a "present risk, as well as where there is a dread of harm." In any case, the threat that has to be considered is the idea of a "emergency" and preventing any interference, inconvenience, or injury to anybody who is properly working. [para. 140] The power must only be used in the context of the material circumstances that enable its use; it cannot be used to stifle genuine expression.
5. Whether the limits breached the petitioner's right to freedom of the press in Writ Petition (Civil) No. 1031 of 2019?
The court had rejected the claims made by the petitioners which asked that the restrictions on communication and development which were imposed in J&K were stopping the press and journalists ability to complete their professional duties. The Court also highlighted as to why the freedom to press is important. It was noted that India had begun to see the press's potential as early as 1914. The Supreme Tribunal noted in Channing Arnold v. The Emperor that: "The journalist's opportunity is a typical component of the subject's opportunity, and it can move wherever the subject as a whole does. However, away from the resolution rule, his honour is not different nor superior. The range of his assertions, responses, or remarks is essentially the same as, and not substantially wider than, that of some other subject." [para. 142] As a result, it was accepted as true that the right to freedom of the press is an important and sacred one that is protected by the Indian Constitution.
The Petitioners' arguments convinced the Court that the compelled restrictions had a chilling effect on their right to free expression even if they were not certain to have a direct impact. Whatever the case, the Court found that the Petitioners had failed to show that the prohibitions solely extended to the circulation of papers in J&K or to contest the State's assertion that papers were distributed and taken when the telecommunication and development lockdown was in place. "Taking into account these realities, and taking into account the fact that the aforementioned Solicitor has now continued distribution, we don't consider it fit to enjoy more in the issue other than to express that mindful Legislatures are expected to regard the opportunity of the press consistently." [para 151]
As I would like to think, the judgment by the court set out the rule of proportionality and sensibility. However, taking into account the way that a total prohibition on the web has been deadly to the economy of the express, the help given by the court isn't with respect to what was generally anticipated. Since the forbidding of the web is the least demanding thing to do, the public authority shouldn't use such means arbitrarily but instead manage it through fair means which don't reduce the essential thing privileges of the residents.
Likewise, I feel that three significant viewpoints were not canvassed for this situation. first and foremost, admittance to an essential right and furthermore, the dependability of the suspension rule, and thirdly, whether the option to utilize web is a principal right, in light of the fact that the world is a worldwide town and closing down the internet providers is denying people of different new open doors, data, and numerous things like this.
For this situation, the court passed various decisions which left a beam of any expectation of improvement around here. To sum up, the court held that the public authority can't guarantee an exemption from creating any request under the steady gaze of the court passed under Section 144 of CrPC and regardless of whether the public authority can guarantee exclusion involves reality which is to be concluded by the court for each situation as per current realities and conditions. Additionally, the court said that because the internet has become such a crucial component of modern life, Part III of the Constitution's core rights include the freedom of expression, the ability to practise any vocation, and the ability to conduct any company or engage in any transaction.
The court also ruled that although limiting online access is significant, there must be "undeniable criteria" or the request will cease to exist. Although Section 144 of the Code of Criminal Procedure permits the imposition of restrictions on risk aversion, these restrictions cannot be used to prevent the honest evaluation of the public or prevent the use of force by slow-moving restrictions orders. The court is not pleased with the situation in the most recent case since the candidate has kept up the distribution. However, it was stated that the press opportunity should be handled by a skilled government.
Regarding Question 1, the Court instructed the State to present all of the orders that led to the application of Section 144 of the Criminal Procedure Code and the limitation of telecom administrations, including the web. Because such restrictions and boycotts affect people's fundamental rights, we may claim that the Court's course of action is legal. People therefore have the right to know the justifications behind such burdens and boycotts. The Court further said that the proportionality test must be satisfied to prevent a violation of ordinary equity.
The Court has given the government the right to completely deny people their freedom of speech and expression, a power that they may use to silence any voice that legitimately criticises their actions.
The Court stated that the provisions of Section 144 of the Criminal Procedure Code can be enforced regardless of whether there is a concern for danger. In any instance, the public authority or the State might misuse this power to their own gain by imposing the Section whenever it suits their needs or desires without real concern. In this approach, there should be a power that can objectively and objectively examine the force of the Public authority without taking a side in the argument.
Similarly, this case can serve as a pillar of confidence amid uncertainty, as the Court determined in this instance. In light of the fact that the world is a global village and that not having the option to use the internet is clearly depriving people of various new opportunities, data, and numerous other things of this nature, the court may hold that the right to freely use one's voice and expression on the internet is a fundamental right in the future. The quick completion of many needs that pose a barrier to the State's development is stopped by web shutdown.
As a result, it may be said that as time goes on, the concepts maintained for this scenario will grow better and be applied more equitably to achieve equity. The ideas may yet "come grow old with me, the finest is yet to be," as Robert Browning wrote in his poem Rabbi Ben Ezra.
 Ram Jethmalani v/s Union of India, (2011) 8 SCC 1
 Indian Express v/s Union of India, (1985) 1 SCC 641
 Odyssey Communications Pvt. Ltd. v/s Lokvidayan Sanghatana, (1988) 3 SCC 410
 Vallandigham 28 F. Cas. 874 (1863),
 Abrams v/s United States, 250 U.S. 616 (1919
 Dennis v/s United States, 341 US 494 (1951).
 Brandenburg v/s Ohio, 395 US 444 (1969)
 Modern Dental College & Research Centre v/s State of Madhya Pradesh, (2016) 7 SCC 353
 Channing Arnold v/s The Emperor, (1914) 16 Bom LR 544