A work in progress | The Indian Express

Context: Three-judge bench of Supreme Court has recently passed verdict on petitions related with shutdown of Internet and telecom services in Kashmir.

Key features of the Judgment:

• Fundamental right to freedoms on Internet: In the judgment, the bench ruled that certain freedoms on Internet are fundamental rights integral to Article 19 and protected by the Constitution under Article 19(1) (a) and Article 19(1) (g). But, the Court have not declared access to Internet a fundamental right. It has not given its view on the question of access to Internet is a fundamental right or not. The freedoms on Internet that have been ruled as fundamental right integral to Article 19 and protected by constitution are listed below.
  • Freedom of speech and expression on Internet
  • Freedom to practice any profession on Internet
  • Freedom to carry on any trade on Internet
  • Freedom to carry on any business on Internet
  • Freedom to carry on any occupation on Internet
• The Court held that while freedom of speech and expression on Internet is protected by the Constitution under Article 19(1) (a), all other freedoms mentioned above are protected under Article 19(1) (g). Article 19(1) (a) gives all citizens the right to propagate one’s views and others views. Article 19(1) (g) gives all citizens the right to know about government activities.
• Reasonable restrictions on Fundamental right to freedoms on Internet: The Court held that all above fundamental rights are subject to reasonable restrictions mentioned in Article 19 (2) and (6) of Indian Constitution. The Court also ruled that the restrictions on all above fundamental rights should be in agreement with the test of proportionality. The Court held that restrictions on above freedom cannot be placed in the exercise of arbitrary powers and without considering relevant factors. The Court ruled that lack of other option is necessary condition for placing restrictions on fundamental right of freedom of speech, expression, trade, business or occupation on Internet.
• The Court ordered the government to immediately review orders temporarily banning Internet services in Jammu and Kashmir and take back orders that are in violation of law.
• In its judgment, the bench made it mandatory for the government to publish all its current and future orders under section 144 of CrPC and orders preventing the continuing of telecom services and internet. The mandatory publishing of these orders will help the citizens in challenging orders before Courts.
• Supreme Court did not scrutinize Telecom Network Suspension Rules of 2017 or test their constitutionality. But, it said that the rules have lacunas and need to be improved. It provided interim guidelines to the government.

Opinion on the judgment:

Supreme Court judgment makes it clear that government cannot unreasonably restrict fundamental rights of citizens. The judgment lays foundation for improvement of Telecom Network Suspension Rules of 2017. However, the judgment leaves certain issues about freedoms on internet unclear and unsettled. Supreme Court has merely said that Telecom Network Suspension Rules of 2017 have lacunas and need to be improved further. So, the judgment can be called as a work in progress. Several state high courts have also expressed opinions against internet shutdown orders of governments.  

Conclusion:

In August 2017, government had issued Telecom Network Suspension Rules of 2017 under Telegraph Act of 1884. The rules were issued without any public consultation. The number of internet shutdowns has grown since the rules were issued for the first time. Now, Supreme Court has said that there are gaps in these rules. So, government should take further action and amend these rules to reduce the number of internet shutdowns in as the rules which are against citizens fundamental right to freedom has no place in a 21st century democracy.