India: Right To Access Internet

Case of Anuradha Bhasin v. Union of India, (2020) 3 SCC 637

INTRODUCTION

The Internet is an indispensable asset in the present times. One of the crucial purposes served by the Internet is the transmission of information. The present generation is dependent on the Internet for getting access to any information whatsoever. Media houses are one of the key stakeholders who make use of the Internet to communicate and provide information to the public. Real-time access to information in cases of havoc in a particular area is of vital importance. It helps in increasing transparency, ensuring that the authorities rectify the issues in a timely and efficient manner, and making certain that proper law enforcement is done.

The present case of Anuradha Bhasin v. Union of India revolves around the issue whether freedom of speech and expression through the medium of interest is protected by the Indian Constitution.

MATERIAL FACTS

Brief facts that lead to the present Writ Petition are as follows:

• It all began when The Civil Secretariat of the Home Department of the State of Jammu and Kashmir advised all Amarnath yatris to prepare for their return for the sake of their safety and security.
• Soon after, schools and offices were shut down, restrictions were imposed on the freedom of movement in certain areas and on 4^th August, 2019 internet services, landline facilities etc. were suspended.
• The next day, on 5^th September, 2019 the President of India issued Constitutional Order 272 which modified Article 367 of the Indian Constitution concerning its applicability to the erstwhile State of Jammu and Kashmir and extended the application of the entire Indian Constitution to the erstwhile state.
• The same day public gatherings and movement was curtailed by the District Magistrate in anticipation of turmoil across the erstwhile State of Jammu and Kashmir.
• These restrictions severely impacted the freedom of movement of several journalists, media personnel etc. including the Petitioners in the present case, Ms. Anuradha Bhasin and Mr. Gulam Nabi Azad. Further, the orders imposing restrictions that were issued by the authorities were not provided to the Petitioners.

ISSUES

The Apex Court deliberated on the following issues in the present case:

1. Whether the government was exempted from producing all orders issued in accordance with Section 144 of the Code of Criminal Procedure and the Temporary Suspension of Telecom Services Rules?
   
   
2. Whether or not the freedom of speech and expression, as well as the freedom to engage in any profession or perform any business or occupation, are considered fundamental rights under Part III of the Indian Constitution?
   
   
3. Whether the government's decision to suspend internet services are valid?
   
   
4. Whether the restrictions imposed under Section 144 of the CrPC are valid?
   
   
5. Whether freedom of the press was violated in the instant case?
   
   

ARGUMENTS ON BEHALF OF THE PETITIONERS

The crux of the arguments advanced by the Petitioners is as follows:

• The Petitioners argued that curtailment of access to the Internet was a restriction on the freedom of speech.

• Due to the severe restrictions imposed by the authorities, the print media came to a halt.

• The authorities could not claim privilege and refuse to produce the orders imposing restrictions.

• Orders restricting movement passed by the District Magistrate under Section 144 of the CrPC ought to indicate a law and order issue that did not exist in the instant case. Further, such orders must be passed against particular individuals who might cause havoc and not the whole public at large which had been done in the present case due to which the entire erstwhile State of Jammu and Kashmir came to a halt.

• There was no necessity of curtailing landline services. Instead, less restrictive measures such as restrictions only on social media services should have been imposed.

ARGUMENTS ON BEHALF OF THE RESPONDENTS

The crux of the arguments advanced by the Respondents is as follows:

• It was argued that the history of terrorism in the erstwhile State of Jammu and Kashmir made it imperative for the District Magistrate to take preventive measures by issuing orders under Section 144 of the CrPC in order to prevent breach of peace and tranquility.

• Individual movement was never restricted and based on the circumstances of different areas necessary restrictions were put in place which were gradually relaxed.

• Internet was not restricted in the regions of Jammu and Ladakh. The reason for restrictions on internet use was to prevent aggravation of the situation. Jurisprudence on free speech through newspapers was not applicable to the Internet.

• Additionally, it was not possible to enable access to some websites while banning others. A prior attempt at such was made in 2017, but it was unsuccessful.

DECISION OF THE COURT

The Apex Court held that right to access internet was a fundamental right.

Articles 19(1)(a) and 19(1)(g) of the Constitution provide protection to freedom of speech and expression as well as the freedom to engage in any profession or carry on any business or occupation via Internet. Such fundamental rights should only be restricted in accordance with the requirements of Article 19 (2) and (6) of the Constitution, including the proportionality test.

The Temporary Suspension of Telecom Services Rules, prohibit orders that permanently suspend internet access. Any suspension of internet service granted in accordance with the said Rules are subject to judicial review and ought to comply with the proportionality principle.

Section 144 of the CrPC is applicable when there is actual danger as well as in situations when there is a threat of danger. This is because the said provision is preventive in nature. However, any exercise of democratic rights cannot be curtailed by way of Section 144 of the CrPC. The principle of proportionality ought to be applied when passing orders under the said provision.

ANALYSIS

The decision in the instant case was delivered by Justice N.V. Ramana. The verdict implemented the proportionality test, which necessitates any restriction on internet access to be proportional to the impending threat or objective. During instances of riots or public turmoil, officials need to provide evidence that suspending internet services is an indispensable and proportionate reaction to the specific hazard faced. Universal or prolonged shutdowns without a clear validation would not satisfy the proportionality standard. The ruling prioritized transparency and accountability. Authorities are obligated to disclose shutdown orders and give explicit justifications for implementing restrictions. This enables examination and responsibility making sure shutdowns are not arbitrary but founded on credible menaces. The court mandated periodic re-evaluations of continuing internet limitations necessity. Meaning if situations like a riot persist officials should periodically reassess if shutting down is still necessary once the threat diminishes they must restore internet services. Further, it was held that only temporary restrictions can be imposed on internet services.

Although, the decision of the Apex Court in the present case recognized the importance of the right to access the Internet as an essential component of the fundamental right to freedom of speech and expression, the judgment did not outrightly prohibit the suspension of Internet services in all circumstances instead it established a framework for assessing the validity of such shutdowns and imposed certain safeguards to prevent arbitrary and disproportionate use of the Internet in certain cases of havoc other situations where public safety and national security are at risk. This means that authorities are still vested with the power to suspend access to Internet despite the same being a fundamental right.

This is why in the recent violence and riots in Manipur, access to internet was suspended. This is not uncommon to hear. Many times, in situations of turmoil or havoc, authorities tend to curtail internet services despite access to the internet being fundamental right now.

CONCLUSION

The recognition of access to the Internet as a fundamental right does not completely eliminate its potential suspension during situations of havoc or riots. Instead, the judgment in the present case establishes a legal framework that demands authorities to exercise this power judiciously and within constitutional bounds. Authoritie­s must demonstrate that any suspension is both proportionate­ and temporary, subject to regular review. This framework aims to strike a balance between protecting fundamental rights and addressing legitimate concerns surrounding public safety and national security. Ultimately, it falls upon the courts and civil society to hold authorities accountable­ for any potential misuse or abuse of this power.

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