Supreme Court of India rules on internet shutdown in Kashmir

Bhasin v Union of India and Others; Azad v Union of India and Others

Date of judgment: 10 January 2020

Court: Supreme Court of India

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Factual background

On 4 August 2019, mobile networks, internet services and landline connectivity were discontinued in parts of Kashmir, with restrictions on movement also being imposed in some areas. The petitioners approached the Supreme Court, seeking amongst other things to set aside all orders, notifications, directions and/or circulars issued by the respondents, under which any modes of communication – including the internet and telecommunications services – had been shut down, suspended or in any way made inaccessible or unavailable in any locality. The petitioners also called on the Supreme Court to direct the respondents to immediately restore all modes of communication throughout the affected areas, in order to provide for an enabling environment for the media to practise its profession.

There were five key issues before the Supreme Court for determination: (i) whether the government could claim an exemption from producing all the relevant orders pertaining to suspension of telecommunications services; (ii) whether freedom of expression and freedom to practise any profession or to carry on any occupation, trade or business over the internet constituted part of the fundamental rights under the Constitution; (iii) whether the government’s action of prohibiting internet access was valid; (iv) whether the imposition of the relevant restrictions were valid; and (v) whether the freedom of press of the petitioners were violated due to the restrictions.

Judgment of the Supreme Court

Production of orders

The first issue before the Supreme Court was whether the respondents were obliged to produce the orders that had been issued in respect of the suspension of telecommunications services. The Supreme Court noted that: “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”. The Supreme Court stated further that: “[T]here is no dispute that democracy entails free flow of information. 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.”

The Supreme Court held that the government was required to take a proactive approach in ensuring that all the relevant orders were placed before the court, unless there was some specific ground of privilege or countervailing public interest to be balanced, which had to be specifically claimed by the government on affidavit. However, in the present case, while the government initially claimed privilege, this was subsequently abandoned, and the government instead cited difficulty in producing all the orders. According to the Supreme Court, this was not a valid ground to refuse the production of the orders.

Fundamental rights under the Constitution and restrictions thereof

The petitioners argued that the impugned restrictions affected their rights to freedom of movement, freedom of expression and freedom of trade. With specific regard to freedom of expression and the internet, the Supreme Court stated as follows (at paras 24-25):

Law and technology seldom mix like oil and water. There is a consistent criticism that the development of technology is not met by equivalent movement in the law. In this context, we need to note that the 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. In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet.

We need to distinguish between the internet as a tool and the freedom of expression through the internet. There is no dispute that freedom of speech and expression includes the right   to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial.

The Supreme Court noted further that the internet is also an important tool for trade and commerce. As stated in the judgment (at para 27):

The globalization 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 …

Internet shutdown

The Supreme Court noted that section 69A of the Information Technology Act, 2000 (the Act), read with the rules made thereunder (the Suspension Rules), allowed for the blocking of access to information. However, the provision is limited in scope; as explained by the Supreme Court, the aim of the section is not to restrict or block access to the internet as a whole, but only to block access to particular websites on the internet. As such, the government could not rely on this provision to restrict the internet generally.

The petitioners did not challenge the constitutionality of section 69A of the Act or the Suspension Rules. Rather, the argument focused on whether the proper procedure had been followed, as provided for in terms of the law. In this regard, the prerequisite for a blocking order was the occurrence of a public emergency, or for it to be in the interest of public safety.

The Supreme Court directed that all procedural safeguards provided for in terms of the law needed to be mandatorily followed, stating that: “This applies with even more force considering the large public impact on the right to freedom of speech and expression that such a broad restriction would have”. The Supreme Court also reiterated that complete broad suspension of telecommunications service, be it the internet or otherwise, was a drastic measure, and must be considered by the government only if necessary and unavoidable. It was noted further that the government must also assess the existence of alternate, less intrusive, remedies.

A key concern for the Supreme Court was that, while the Suspension Rules provide that any suspension of telecommunications services must be “temporary”, it did not indicate the maximum duration for which a suspension order can be in operation. The Supreme Court noted that: “Keeping in mind the requirements of proportionality … we are of the opinion that an order suspending the aforesaid services indefinitely is impermissible”.

As such, the Supreme Court ordered that the Review Committee constituted in terms of the Suspension Rules to conduct a periodic review within seven working days, and determine whether the restrictions were still in compliance with the law and proportionate. In respect of the suspension orders that had been placed before the Supreme Court, it was held that the authorities must pass their orders afresh, based on the guidelines provided in the judgment.

Order of the Supreme Court

In the result, the Supreme Court issued inter alia the following directions:

• The respondents were directed to publish all orders in force and any future orders for the suspension of telecommunications services, to enable the affected persons to challenge it before the High Court or appropriate forum.
• It was declared that freedom of expression and the freedom to practise any profession or carry on any trade, business or occupation over the medium of the internet enjoys constitutional protection.
• An order suspending internet services indefinitely is impermissible, and can be for a temporary duration only.
• Any order suspending the internet issued under the Suspension Rules must adhere to the principle of proportionality and must not extend beyond necessary duration.
• Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein.
• The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Until this gap is filled, it was directed that the relevant Review Committee must conduct a periodic review within seven working days of the previous review.
• The respondents were directed to review all orders suspending internet services forthwith.
• Orders not in accordance with the law must be revoked. Further, in future, if there is a necessity to pass fresh orders, the law laid down in the judgment must be followed.
• The respondents were directed to consider allowing government websites, localised e-banking facilities, hospital service and other essential services in the affected areas, where the internet services were not likely to be restored immediately.

The full judgment is accessible here.

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