The SC’s declaration that the freedom of speech and expression, as well as the right to trade over the internet, has constitutional protection under Article 19 (1) is the first time that the Court has made a positive assertion regarding the same. (Reuters)
The judgment of the Supreme Court on January 10 by a three-judge bench, pertaining to the communication and internet shutdowns in Kashmir, has received massive media coverage. It appears that there is some misunderstanding related to some of its conclusions with respect to internet restrictions, which has resulted in massive mischaracterisation of the judgment itself.
At the most fundamental level, the judgment upholds the requirement of natural justice that those affected by an executive or administrative order have the right to access the said order. As has been rightly pointed out by others, the state has often relied on unpublished and inaccessible orders and materials to justify its actions, including in the present Kashmir case.
The orders passed by the state (except for a certain “sample” order) were not even placed on record. However, the SC, by both requiring the state to proactively place orders before a court in writ proceedings, as well as requiring the publication of orders under the Internet Rules — as well as those passed under Section 144, CrPC — has taken away this mechanism of the state to thwart or abridge rights. The entire preliminary struggle faced by the petitioners in the present case, to have access to the orders they were challenging, has been done away with and is unlikely to resurface.
This is a huge victory for those struggling against the abridgment of civil liberties: State authorities can no longer rely on the cover of secrecy to pass arbitrary orders.
The SC’s declaration that the freedom of speech and expression, as well as the right to trade over the internet, has constitutional protection under Article 19 (1) is the first time that the Court has made a positive assertion regarding the same. The Court has therefore made any curbs on the internet subject to the stringent requirements of restrictions under Article 19 (2).
This brings in the proportionality analysis, which the Court interprets to include the requirement of allowing only the least restrictive measure. With respect to the internet, the Court specifies that the blanket suspension or banning of the internet is a “drastic measure” that cannot be usually resorted to by the state.
This case was also the first opportunity for the SC to expound on the procedure under the Internet Suspension Rules. While the Court did not go into the question of their constitutionality, it did make the procedure under the Rules more robust. The SC also filled by requiring a periodic weekly review of orders passed under the Suspension Rules. This review is not ordinary, or superficial, but appears to require proper analysis by the Review Committee, as the same has been given the responsibility under Rule 2(5) to verify that the orders passed are in compliance with the requirements of the Telegraph Act.
It must be understood that this is a general requirement for any order passed under the Suspension Rules, and is not a specific direction to the administration in J&K. In the context of the present nationwide curbs and political climate, the holding of the Supreme Court on fundamental rights, both on substantive and procedural questions, not only sets the stage for challenges in the high courts, but also raises the threshold for when the state can impose such restrictions. The ruling also sets the stage for the relief granted to the people in Kashmir.
The SC has effectively ruled that the Kashmir internet orders be revoked, seeing as it is unlikely that the orders passed by the state authorities could have been in compliance with the ruling. If they do not revoke the orders, they would have to publish them, and prove that the orders were in compliance with the law laid down by the SC. Otherwise, the authorities face the risk of being in contempt of the present SC judgment: A decision which might not play out very well, either legally or politically, both in India and internationally.
This article first appeared in the print edition on January 22, 2020 under the title 'No more secrets'. The writer is a senior advocate, Supreme Court of India.