Writ Petition (C) No. 1031 of 2019.
AIR 2020 SC 1308.
Hon’ble Chief Justice of India N. V. Ramana, Hon’ble Justice R. Subhash Reddy, Hon’ble Justice B. R. Gavai.
Date of Judgement
January 10, 2020.
“Constitution of India”, “The Code of Criminal Procedure (Amendment) Act, 2005”, “The Indian Telegraph Act, 1885”
Facts of the case
The issue came in 2019 when the Government of Jammu and Kashmir issued a “Security Advisory” and directed the tourists (including numerous “Amarnath yatris”) to return in order to ensure safety. Adding to this, orders were issued to shut down educational institutions. Finally, on 4th August, internet connection, phone networks, and landline connections were cut off too. On August 5th, the President decided to impose “Constitutional Order 272”. As per this order, the provisions of the Indian Constitution would be applied to Jammu and Kashmir. Simultaneously, Section 144 of the CrPC was imposed in order to maintain peace in the valley. Due to such restrictions that were imposed, movements of various journalists were hampered a lot as well. As an outcome of this, the “Kashmir Times Srinagar Edition” could not get distributed on 5th August. The petitioner is the executive editor of the “Kashmir Times” newspaper. The petitioner has also claimed that she had not been able to publish the newspaper since the next day, i.e., 6th August 2019. Under Article 32 of the Indian Constitution, the petitioner had approached the Hon’ble Supreme Court, for issuance of a writ for setting aside the orders imposed by the respondents. She claimed that the Internet is an important factor in today’s world. She also claimed for lesser restrictions in the movement of journalists.
- Whether the Government can claim exemption from producing all orders passed under CrPC Sec 144 and others under suspension rules.
- Whether “freedom of speech and expression” and “freedom to practice any profession, or to carry out any trade” over cyberspace can be considered a fragment of the fundamental rights under “Part III of the Constitution”.
- Was it valid on the Government’s part to restrict internet facilities and to impose restrictions under “Section 144 of the CrPC”?
- Was the petitioner’s “freedom of the press” violated due to the restrictions?
Arguments made by the petitioner:
The first argument put forward was that the petitioner could not do her job and get the newspaper published due to the imposed restrictions (on press) from 5th August 2019. Since internet facilities were stopped, the print media got hampered badly. Hence, people’s livelihood got affected due to the restrictions (violation of Article 19(1)(g) of the Indian Constitution). The right to speech was violated, due to the cutting down of internet facilities. It was argued that the restrictions made were not at all reasonable or proportional in any sense. The counsel contended that all the restrictions were levied on the premise of the apprehension of some danger to the regulations and law. Also, there is a difference between “public order” and “law and order”. The restrictions imposed and the measures taken were in order to protect “law and order”. Also, these restrictions did not even seem to be temporary, because it had already been a long time since they were functioning. It was argued that the state should have undertaken a less strict alternative in the beginning. Also, the restricting movement was applied over the entire state, and not in specific regions. The petitioners contended that such a restriction all over the state was unnecessary.
Arguments made by the respondent:
The primary argument made by the respondent was that these restrictions were absolutely necessary in order to fight terrorism in the state. They also claimed that general freedom of expression and speech cannot be applied to the Internet, because there are a lot of dangers on this platform. It was argued that it is not possible to shut down specific websites, hence, a total shutdown was the only alternative. They also claimed that the situation was getting exaggerated.
The Court held that the “freedom of speech and expression” and “freedom to practise any profession or to carry out any trade” on cyberspace are protected under Articles 19(1)(a) and 19(1)(g) respectively. It was held that any restrictions on the abovementioned rights, would have to be reasonable and in compliance with Articles 19(2) and 19(6) of the Constitution. Hence a “proportionality test” was ordered by the Apex Court. If the restriction to internet access is not found to be proportional then it would cease to exist. It was held that: “the government cannot contend any exception for providing any order before the court which is passed under Section 144 of the CrPC.” No order was issued by the court to provide remedies to those who were already affected, but a lot of principles were laid down for future suspensions. Apart from these, the court dismissed the plea where the petitioner claimed that freedom of the press was violated due to the restrictions, due to lack of evidence.
Internet is an important part of our daily life in today’s world. We are very much dependent on the internet for a lot of things including trade and business. It can be concluded that Internet has become so important that it is being included in Part III of the Indian Constitution. This judgement is very significant because the primary aim of the case was to judge the legality of the restriction of internet facilities. The Apex Court had also introduced a number of principles that would prevent undue misuse of the powers provided to the Government, especially in such cases.
This article is written by Aaratrika Bal student at National Law University Odisha.