EDITORIAL ANALYSIS–“Slow Connection”
The Editorial covers GS paper 3[Awareness in the fields of IT, Space, Computers, robotics, nano-technology, bio-technology and issues relating to intellectual property rights.]
- The Supreme Court has ordered the government to review “forthwith” any existing orders that restrict basic rights and free movement in Jammu and Kashmir.
- The court upheld the freedoms of free speech, expression, and trade or business on the Internet as fundamental rights to be constitutionally protected.
- It, however, refused to express any views on whether the very access to the Internet is a fundamental right or not.
What is the background?
- The Supreme Court order came primarily on public interest litigation (PIL) by the editor of Kashmir Times, Anuradha Bhasin, challenging the lockdown in the state.
- Sweeping five-month-old restrictions on the internet and the right to assembly have impacted people’s freedom to conduct their business in Kashmir.
- Suspension of telecom and Internet services in the Valley are in place since August 5 following the abrogation of the special status of the erstwhile State under Article 370.
- India tops the list of Internet shutdowns globally. The ongoing shutdown in Kashmir is the longest ever in any democratic country.
- India witnessed a suspension of mobile and broadband Internet services in many states in the wake of anti-CAA protests.
What did the three bench of SC deals with?
- The shutdown of the internet and other communication services,
- The enforcement of prohibitory orders under Section 144 of the Criminal Procedure Code across Jammu and Kashmir, and
- The resultant effect of both these on the freedom of the press.
What are the key takeaways from the SC judgement?
- The uses of the Internet as a medium for free speech as well as for trade and commerce is constitutionally protected: The SC declared that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g).
- The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.
- Although the court stopped short of ruling that access to the Internet is a fundamental right, it said that the Internet as a medium is used to exercise other fundamental rights.
- The court recognized that the 2017 Rules are the only procedure to be followed to suspend Internet services in the occurrence of a “public emergency” or for it to be “in the interest of public safety”.
- No ‘secret orders’. Although the Suspension Rules do not provide for publication or notification of the orders, the government is bound to publish all orders it passes regarding such restrictions so that they can be challenged in a court of law on grounds of proportionality.
- Every order imposing a restriction should state the reason, the exigency that necessitated it and the features that make it clear that it is the least intrusive measure.
- ‘Gaps’ highlighted in the current Suspension Rules: The court pointed out that the government was able to continue with the suspension of Internet services because the 2017 Rules did not define the word “temporary”. No time-limit was prescribed in the rules.
- The court asked the legislature to repair this lacuna. Till then, any order of Internet suspension under the rules would be reviewed within a week of its issuance.
- Section 144 & ‘abuse of power’: Repetitive orders under Section 144 CrPC was an abuse of power.
- The power under Section 144 Criminal Procedure Code, being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger.
- Despite the 2017 rules, the government has often used the broad powers under Section 144.
- Survive the test of proportionality: It also lays down that any reasonable restriction on fundamental rights, be it an Internet ban or a Section 144 order, will have to survive the test of proportionality, that is, the restriction should be proportionate to the necessity for such a measure.
- There should not be an excessive burden on free speech even if the complete prohibition is imposed, and the government has to justify the imposition of such prohibition and explain why lesser alternatives will be inadequate.
- Restoring essential websites: It further instructed the government to consider restoring government websites, localized/limited e-banking facilities, hospital services, and other essential services in areas in the Union Territory, where it was otherwise not thinking to do so immediately.
What is the significance of the judgement?
- Judicial review easier now: While suspension orders were always subject to judicial review, lack of availability of such orders in public domain prevented such challenges before courts.
- National security Vs. liberty: What the state was arguing, in this case, was that this is a matter of national security given that it pertains to Kashmir with a history of militancy.
- They said, therefore leave it to the state, armed forces, and security forces to determine what restrictions need to be imposed, and the court should not be reviewing these orders which mandated passing of orders under Section 144 to suspend the Internet in Kashmir.
- On that aspect, the court said that it will judicially review executive orders.
- Having rejected the government’s stand that it could not produce all the orders on the restrictions imposed since August 4, 2019, the court fails to strike them down on that ground.
- The court failed to give a ruling on the validity of the government’s actions.
- It fails to hold the government to account for the manner in which it exercised its powers. Thus it can be concluded that an apex court judgment in a fundamental rights case appears to have the character of an advisory opinion.
What is the way forward?
- Amending 2017 rules: Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 should be suitably amended to provide for publishing ‘written reasons’ for lockdown. Also ‘the word temporary’ should be clearly defined to avoid indefinite lockdown.
- Reducing internet shutdowns: Indian Council for Research on International Economic Relations (ICRIER) has recommended several remedies, including official communication and data about shutdowns and policies, as well as restricting the use of blanket shutdowns.
- A disaster management mechanism is feasible to follow and the Government should be equipped technologically and physically to deploy the same in times of emergency.
- Telcos’ responsibility: It should be one of the responsibilities of telcos to inform their customers in advance about network shutdowns.
- Administrative and Government authorities should be equipped with the tools to use the Internet for counter-speech purposes to manage public emergencies.
- Curtailing use of Section 144 to shut down the Internet and devising inclusive rules: there should be a public dialogue for policies like Temporary Suspension of Telecom Services rules and the IT act.
The success of Digital India and Pradhan Mantri Gramin Digital Saksharta Abhiyan (PMGDISHA) which aim towards digital inclusion, depends on access to the internet to everyone.