The Supreme Court has recently delivered a verdict on the cases concerning the lockdown in Kashmir, the communication shutdown, and their impact on press freedom. The cases are explicitly linked to prohibitory orders issued under Section 144 of the Code of Criminal Procedure (CrPC). In the context of Jammu and Kashmir’s special status being revoked and the state split into two union territories: Jammu and Kashmir, and Ladakh, internet access was disconnected.
Judgment Regarding Internet Suspension
The Supreme Court ruled that an indefinite suspension of internet services is not permissible as per the Temporary Suspension of Telecom Services [Public Emergency or Public Service] Rules, 2017. As per the judgment, suspension should only be temporary and is liable for judicial review.
It further stated that a “complete and broad” suspension of telecom and internet services should only be used as a last resort in an “unavoidable” situation. Consequently, the court instructed the government to review all directives pertaining to the suspension of internet services within a week.
Reaffirmation of Fundamental Rights
The court emphasized the importance of free speech and expression on the internet, acknowledging it as a fundamental right under Article 19(1)(a) of the Constitution. Additionally, the court held that any trade, occupation or commerce dependent on the internet falls under a fundamental right as per Article 19(1)(g).
Any restrictions upon these fundamental rights need to adhere to what is stated under Article 19 (2) and (6) of the Constitution, including the test of proportionality. This implies that the extent of the State’s interference with the exercise of a right must be proportional to the goal it seeks to achieve.
Ruling on Section 144
The Supreme Court deemed the repetitive orders under Section 144 CrPC as an abuse of power. It ruled that the power under Section 144 is applicable not only under present danger but also when there is a potential threat. However, the anticipated danger should be of an ’emergency’ nature aimed at preventing obstruction, annoyance or injury to any person legally employed.
An Overview of Key Facts
| Article 19(1)(a) | Guarantees the right to freedom of speech and expression |
|---|---|
| Article 19(1)(g) | Guarantees the right to practice any profession, or to carry on any occupation, trade or business |
| Article 19 (2) | Establishes the State’s right to impose reasonable restrictions on the exercise of the right to freedom of speech and expression in various interests such as Sovereignty and integrity of India, Security of the State, etc. |
| Article 19(6) | Allows the State to impose reasonable restrictions on the exercise of the right provided under Article 19(1)(g) in the interest of the general public |
| Section 144 CrPC | Empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate to issue orders to prevent and address urgent cases of apprehended danger or nuisance |
Last Word on Temporary Suspension of Telecom Services [Public Emergency or Public Service] Rules, 2017
These rules outline the protocol to be followed if the government wishes to temporarily suspend telecom services in any part of the country. Accordingly, only the Home Secretary of the country and a secretary of a state’s home department can pass such an order, which must be taken up by a review committee within five days. The government formulated these rules using the powers conferred by section 7 of the Indian Telegraph Act, 1885.
Last Modified: February 7, 2024