Context

The Supreme Court gave a landmark judgement on the internet shutdown in Kashmir. The court ruled indefinite internet shutdown in Kashmir unwarranted and amounting to abuse of power.

About

• Internet shutdown in Kashmir: The government had imposed a communications lockdown in Jammu & Kashmir since August 2019.
• • The shutdown which lasted more than 150 days is the longest such outage in any democracy.
  • The shutdown was aimed to control unrest after abrogating Article 370 of the Constitution.
  • Mobile phone connections were also cut, but have been restored in most places.
• Other cases of internet shutdown: The Centre has frequently used internet shutdowns as a tool to quell dissent in troubled parts of the country.
  • Internet was curbed in parts of the National capital and in areas of Assam and Uttar Pradesh as protests raged against a new citizenship law.
  • There have been at least 381 documented instances of internet shutdown in India in the last nine years; 319 of those cases have occurred since 2017.
  • In matter of internet shutdown, India is deemed third worst-hit after Iraq and Sudan.
• Challenging government decision: Government’s decision was challenged by Journalist Anuradha Bhasin and politician Ghulam Nabi Azad.
  • Finally, a 130-page judgment was delivered in this regard by Justice N.V. Ramana, R. Subhash Reddy and B.R. Gavai.

Government’s argument

• Necessary: The Centre had justified internet restrictions after abrogation of provisions of Article 370.
  • Government shut down internet as a preventive step to secure lives of citizens.
• Peace maintained through the transition phase: According to the government it is due to the preventive steps taken that neither a single life was lost nor a single bullet fired, while J&K transitioned from being a state to Union Territory.
• Border infiltration: Internet shut down was necessary to prevent terrorists sponsored by Pakistan from fuelling unrest and violence in Kashmir.
  • The current wave of militancy in Kashmir is being fuelled by terrorist groups recruiting young Kashmiris via internet and social media.

Supreme Court ruling

• Impermissible: The Supreme Court ruled that indefinite internet ban in Jammu & Kashmir is impermissible.
• Abuse of power: Repeated use of section 144 of CrPC amounts to ‘abuse of power’.
  • Reasons have to be given for imposing Section 144 and magistrate should balance rights of individual with state interest when issuing such orders.
• Orders to be put in public domain: The bench ordered the Jammu and Kashmir administration to put in public domain all orders that can then be challenged in a court of law.
• Constitutionally protected right: The court ruled that right to access internet is constitutionally protected and internet can be shut down only in exceptional circumstances.
  • The value of liberty is important and not negotiable.
  • The access to internet being a fundamental right is a means of getting information.
  • People have a right to know, as a part of Article 19(1)(a).
• No repetitive use of Section 144: The court argued against government’s repetitive use of Section 144, holding that there needs to be an emergency for invocation of the provision, and mere expression of disagreement cannot be a ground.
• Violation of telecom rules: An indefinite suspension of the internet was a violation of the country's telecoms rules.
  • Indefinite suspension is against Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017.
  • Principle of proportionality must be adhered to and must not extend beyond necessary duration.
• Slow technological pace: With greater mobility of technology and artificial intelligence, there has to be a catch up with technology as well. Curbing internet amounts to slowing the pace of technological development.
• Freedom of press: The Right of freedom of press was seen as a way for people to gain information from the press. Press and people are intertwined for purpose of information.
• Right to Information: Any order under Article 144, must be transparent for people to know and with a possibility of a challenge to those orders.
• Subject to Judicial review: The judgement asks larger questions pertaining to the exercise of statutory powers such as Section 144.
  • The judgement is not questioning the right of the government but the extent to which the government can shut down internet. It has also made a shutdown subject to judicial review.
  • The judgement does not transgress into the domain of executive.
  • There is a mandamus for court to review government’s actions.

List of statutes concerning the judgement Code of Criminal Procedure Code, 1973 Indian Penal Code, 1860 Indian Telegraph Act, 1885 Temporary Suspension of Telecom Services, (Public Emergency or Public Safety) Rules, 2017 Information Technology Act, 2000 Right to Information Act, 2005

Criticism for internet shutdown

• The internet blackout and restrictions on movement has severely disrupted the lives of millions.
• It has impacted everything, from college admissions to businesses filing tax returns.
• The unavailability of internet has also severely impacted businesses.
• According to ICRIER, internet shutdown had cost the Indian economy about $3.04 billion.
• According to Cellular Operator Association of India (COAI), mobile carriers lost about $8 million a day for shutdown in any of the 22 circles where they operate in the country.

Conclusion

The judgement is very seminal, progressive, and also not unaware of the societal interests. It strikes a very careful balance between rights and liberty on one hand and the need to protect citizens on the other, through the state. Supremacy of the Constitution and value of human beings was upheld through this judgement.