ANMOL JAIN

In this article, Anmol Jain leads us through a detailed analysis of an important legal case in India that concerns the rights to free speech and internet access. The case concerns Anuradha Bhasin, editor of the Kashmir Times Srinagar Edition, who approached the Indian Supreme Court to challenge the Indian Government’s decision to restrict internet access in the union territory of Jammu and Kashmir, which, among other things, prevented her newspaper from being able to publish for three months in 2019.

The state of Jammu and Kashmir holds a unique position in the Indian polity due to its geo-political history. When the Indian Constitution was enacted in 1950, the state of Jammu and Kashmir was conferred a special status by virtue of Article 370, which bestowed upon it a greater amount of autonomy than other Indian states. It was the only state in India that had its own Constitution until recently, as no other state is allowed to have sub-national Constitutions. The history of this state is rife with uncountable instances of cross-border terrorism from Pakistan and several attempts to invoke secessionist feelings among the local population.

With an aim to bring a state of normalcy in the region, as claimed by the ruling BJP Government, Article 370 was diluted on August 5, 2019 and its special status was scrapped. Anticipating the loss of tranquility, the state was placed under high security even before the motions to effect the necessary changes were placed in the Parliament. The tourists were directed to return, schools and other educational institutions were closed, key leaders of opposition parties were put under house arrest, and telecommunication and internet facilities were suspended. This short comment concerns the last part of the planning – suspension of internet facilities in the state – and I attempt to dissect the recent judgment of the Indian Supreme Court regarding this issue.

The decision of the Supreme Court in Anuradha Bhasin takes certain significant steps in constitutional and criminal law jurisprudence of India, but fails to grant any effective remedy to the petitioners and the people of Jammu and Kashmir in general.

The judgment can be divided into five major parts. First, the law regarding production of materials by the parties to a case; second, the comprehensive law on freedom of speech and expression and the varied standards that must be adopted by the courts while reviewing any impugned legislation or administrative order; third, the law regarding statutory procedures for the suspension of internet; fourth, the reiteration of law regarding Section 144 of the Code of Criminal Procedure of 1973, which grants the Executive Magistrate the power to issue orders in urgent cases of nuisance and apprehended danger; and fifth, the law on freedom of press.

When the petitioners approached the Court, they did not have in their possession any administrative order through which the Jammu and Kashmir Government had suspended the telecommunication services and internet facilities and imposed restrictions on their movements since August 04, 2019, making them completely unaware as to why they have been denuded of their constitutional liberties. In the initial proceedings, the government even declined the production of the orders for the perusal of the Court, first by claiming state privilege to not publicise its orders on the grounds of public interest; and then on account of difficulties as the government claimed that such orders were being amended on a daily basis. However, citing the petitioners’ right to information under Article 19 of the Constitution, and their right to know the reasons for the suspension of their liberties as part of the natural law, the Court directed the Government to produce the orders in the Court.

These Government orders sought to restrict the access to internet facilities to the general masses on the apprehension that internet might be used as a platform for instigating disruptive activities. In this light, the petitioners argued that internet is an important medium for exercising their freedom of speech and expression and thus, any limitation on the access to internet facilities must conform with the standards set for upholding restrictions on fundamental rights of the citizens. The Court upheld this argument, but with a necessary rider:

28. None of the counsels have argued for declaring the right to access the internet as a fundamental right and therefore we are not expressing any view on the same. We are confirming ourselves to declaring that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under Article 19(1)(g), using the medium of internet is constitutionally protected.

Once the court established the existence of a right, the exercise followed a structured reiteration of constitutional jurisprudence on the standards set for putting restrictions on the said right. Taking inspiration from the aspect of ‘reasonableness’ of restrictions as envisaged in the Constitution, the Court articulated a four-level test for checking whether the restrictions were suitable, based on factors of legality, necessity, reasonability and least restrictiveness.

After applying their comprehensive four-level test, the Court went on to analyse the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 through which the internet facilities were sought to be suspended in Jammu & Kashmir. The Court ultimately concluded that the suspension of the internet can be ordered only during ‘unavoidable’ circumstances of ‘public emergency’ or harm to ‘public safety’ Moreover, as Articles 226 and 32 of the Constitution of India allow citizens to directly approach the High Courts of the States and the Supreme Court, respectively, on account of violations of their fundamental rights, the Court noted that sufficient safeguards are available to challenge such internet bans.

However, the Court also noted that the word ‘temporary’ in the title of the Rules prescribes ‘no indication of the maximum duration for which a suspension order can be in operation.’ Noting that a blanket indefinite restriction on internet access is unreasonable, the Court affirmed that the Review Committee, as constituted under Rule 2(5), ‘must conduct a periodic review within seven working days of the previous review.’ Recalling the comments made by the Indian Supreme Court in K.S. Puttaswamy v. Union of India. The case pertained to the constitutional validity of the Aadhaar (Targeted Delivery of Financial Aid and Other Subsidies, Benefits and Services) Act, 2016, which was enacted to provide a legal framework to the pan-India biometric identity card called Aadhaar. Section 33(2) of the Act empowered an officer of the rank of Joint Secretary to the Government of India or above to disclose the identity information and authentication records of any individual in the interests of national security. It further stated that such disclosure ‘shall be reviewed by an Oversight Committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology, before it takes effect’. One cannot fail to note the similarities between Rule 2 of the Internet Suspension Rules and Section 33(2) of the Aadhaar Act. With respect to the latter, while holding it as unconstitutional, the Supreme Court stated that:

“… disclosure of information in the interest of national security cannot be faulted with. However, we are of the opinion that giving of such important power in the hands of Joint Secretary may not be appropriate. There has to be a higher ranking officer along with, preferably, a Judicial Officer.”

However, the Court in Anuradha Bhasin failed to take note of these observations which were made with regard to the right to privacy of an individual, not more than a couple of years ago.

Lastly, the Court takes the argument regarding freedom of press, which, I argue, can be best described as a blot on Supreme Court’s earlier jurisprudence on freedom of press. The petitioner is an executive editor of one of the major newspapers of Jammu & Kashmir, and was unable to publish from August 06 to October 11, 2019 due to unpublished prohibitory orders. The freedom of press and consequently, the right to knowledge of the citizens were definitely affected. The Court performs a poor job in first, acknowledging the plight of the petitioner and then, in undertaking a review of the legal position. The Court initiated by restricting the scope of analysis to the argument of chilling effect:

146. … Squarely however, the contention of the Petitioner rests on the chilling effects alleged to be produced by the imposition of restrictions as discussed above.

Then, the court decided to leave open the question as to the determination of appropriate standard for establishing a causal link in a challenge based on chilling effect, and chooses to rely merely on ‘one possible test’ – the test of comparative harm, where ‘the Court is required to see whether the impugned restrictions, due to their broad-based nature, have had a restrictive effect on similarly placed individuals during the period’. As no evidence to prove such comparative harm was placed, and combined with the fact that the Petitioner had resumed the operations since October, the Court opted to escape the situation. In the words of the Court:

[W]e do not deem it fit to indulge more in the issue than to state that responsible Governments are required to respect the freedom of the press at all times.

I argue that the approach adopted by the Court is ridden with flaws. First, it based the analysis of the violation of the fundamental right of an individual on the existence of similar violations to other individuals, which is constitutionally impermissible. Second, given the fact that freedom of press is guaranteed as part of the freedom of speech and expression, the Court failed to utilize the four-level test structured above to analyze as to whether the restrictions on the press were constitutionally sustainable or not. Third, it virtually upheld the state’s intrusion in one’s constitutional right with complete impunity. Though the Court saw the situation unworthy of its indulgence, but such an approach by the Apex Court, claimed to be the sentinel on the qui vive, does have chilling effects on possible litigation in the future.

Reading the decision of the Court as a whole, one would not fail to observe the wider implications of this decision as well as the Court’s failure to grant any immediate remedy to the petitioner. The ruling of the Court that the Indian Constitution guarantees a right to free speech and occupation through the medium of internet and that any order suspending the internet services must be published has created an important precedent for future litigation. At the same time, its approach to stay short from upholding a ‘right to internet’ has ensured that no obligations to provide active internet services to financially weak citizens fall upon the government. This is definitely concerning in a world where all the general activities continue to shift on online platforms, with COVID-19 further exacerbating this process. In a socio-economic setup, where not even 40% of Indians have access to active and fast internet services, a rapid shift on online media for even basic services like education, medical consultancy etc. in the absence of an enforceable right to internet shall further widen the divide of haves and haves not. It could not have been a bigger irony that India is home to a government that does not fail to boost its policy of creating a ‘Digital India’, while at the same time being infamous for ordering the highest number of internet bans in a year. And thus, I say, that the decision in Anuradha Bhasin is a mixed blessing.

Anmol Jain is a final year constitutional law student at National Law University, Jodhpur (India). He is the former Editor-in-Chief of the Comparative Constitutional Law and Administrative Law Quarterly. Follow his work @anmoljain24