IS INTERNET SHUTDOWN AND RESTRICTION OF MOVEMENT VIOLATIVE OF ARTICLE 19(1) (a) OF THE INDIAN CONSTITUTION?

Introduction

Earlier this year, the Government of Jammu & Kashmir informed Amarnath Yatra pilgrims and tourists to leave Jammu and Kashmir and shut schools and offices until further notice. Internet services, mobile phone networks, and landline connectivity were also shut down in the region. Some additional restrictions were imposed on freedom of movement and public gathering, apprehending breach of peace and tranquillity, citing authority to do so under Section 144 of Code of Criminal Procedure, 1973 (“CrPC”).

These restrictions were challenged as being violative of the right to freedom of speech and expression enshrined under Article 19(1)(a) of the Indian Constitution. The petition sought for a direction to restore all modes of communication for ensuring the free movement of the journalist and reporters. The Supreme Court primarily considered whether freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights protected by Article 19(1)(a) of the Constitution.

What the Supreme Court said

The petitioners argued that for the imposition of restrictions under Section 144 of CrPC, the state had to prove that there existed a situation which was likely to create obstruction, annoyance or injury to any person or might cause disturbance to public peace. Further, they said that such orders can’t be imposed in anticipation or merely on the basis of apprehension. It was also argued that the restrictions under Section 144 of CrPC have direct consequences upon the fundamental rights of the public in general and thus the State must produce material facts necessitating invoking this power. This will enable judicial scrutiny and verification of the order’s legitimacy. 

The Supreme Court was of the opinion that the the right to information is one of the important parts of freedom of speech and expression. The fundamental rights oblige the state to act responsibly in protecting them and prohibit the state from taking them away in a cavalier manner.  Further, the state cannot secretly pass any law on a mere apprehension of danger to democracy. The state should ensure to inform its citizens of any law which restricts their fundamental right unless there is a special privilege or countervailing public interest. 

The Supreme Court further reiterated that the freedom of speech and expression through the internet is one of the ‘integral parts’ of Article 19(1)(a). The Constitution allows the government to impose restrictions under Article 19(2) as long as such restrictions are reasonable, and imposed only for a legitimate purpose. The Supreme Court has to determine the legality of restrictions imposed on the right to free speech and held, considering the principle of proportionality an indefinite suspension of communication technology is impermissible. 

ConclusionThe judgment in this case laid down the principle of proportionality and reasonableness. However, according to us three important aspects were not covered in this case. Firstly, a person’s access to a fundamental right, secondly, the constitutionality of the suspension, and thirdly, whether the right to use internet is a fundamental right.

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