SC verdict on internet shutdowns

Security Issues Jammu & Kashmir

17-Jan-20

Context: Supreme Court has delivered the verdict on a clutch of petitions challenging the Union government’s decision to impose restrictions on the erstwhile state of Jammu and Kashmir after the August 5 revocation of provisions of Article 370, giving special status to the state.

The Court said that all restrictive orders under Section 144 of CrPC and suspension of internet services in Jammu and Kashmir have to be reviewed by the administration within a week.

Implications:

The verdict has laid down a framework of how the Internet can be suspended, and what rights and legal recourses a citizen has when it is suspended.

What’s the issue?

Many parts of Jammu and Kashmir have been under lockdown for five months now – with no internet and restrictions on movement. The internet shutdown in Kashmir is the longest in any democracy in the world.

The Union government decided to impose restrictions on the erstwhile state of Jammu and Kashmir after the August 5 revocation of provisions of Article 370, giving special status to the state.

Observations made by the Court:

On internet restrictions:

Right to internet is a fundamental right (subject to reasonable restrictions) included in the freedom of expression under Article 19 of the Indian Constitution.

Restrictions on fundamental rights could not be in exercise of arbitrary powers. These freedoms could only be restricted as a last resort if “relevant factors” have been considered and no other options are there.

Any order passed to restrict or suspend judicial scrutiny will be subject to judicial scrutiny.

Suspension of internet services indefinitely is also a violation of telecom rules.

On section 144:

Sec 144 cannot be used to suppress the legitimate expression of opinion or grievance, or the exercise of democratic rights.
When Sec 144 is imposed for reasons of apprehended danger, that danger must be an “emergency”.
The imposition of Sec 144 must strike a balance between the rights of the individual and the concerns of the state.
Powers under Sec 144 should be exercised in a reasonable and bona fide manner, and the order must state material facts in order to enable judicial review.

Criticisms:

Restrictions have virtually abrogated the fundamental rights and paralyzed the lives of seven million people in the region.

These restrictions have been imposed under the garb of public tranquillity, public order and national security, but national security does not appear in the order imposing Section 144 of the Criminal Procedure Code in the region.

The shutdown of internet services have severe consequences on business, trade and heavily affect the common people in the region.

India also tops the list of Internet shutdowns globally. According to Software Freedom Law Center’s tracker, there have been 381 shutdowns since 2012, 106 of which were in 2019.

What procedure does the government follow to suspend Internet services?

The Information Technology Act, 2000, the Criminal Procedure Code (CrPC), 1973 and the Telegraph Act, 1885 are the three laws that deal with suspension of Internet services.

But before 2017, Internet suspension orders were issued under section 14 of the CrPC.

In 2017, the central government notified the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules under the Telegraph Act to govern suspension of Internet. These Rules derive their powers from Section 5(2) of the Indian Telegraph Act, which talks about interception of messages in the “interests of the sovereignty and integrity of India”.

Despite the 2017 rules, the government has often used the broad powers under Section 144.

So, what does the judgment say on the rules to be followed?

The court recognised 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”.

The verdict reiterated that the competent authority to issue an order under the Suspension Rules, in ordinary circumstances, would be the Secretary to the Ministry of Home Affairs.
The Rules also say that in case the confirmation does not come from a competent authority, the orders shall cease to exist within a period of 24 hours.
Clear reasons for such orders need to be given in writing, and need to be forwarded to a Review Committee by the next working day.
The confirmation must not be a mere formality, but must indicate independent application of mind by the competent authority to the order passed by the authorised officer, who must also take into account changed circumstances if any, etc.

Temporary Suspension of Telecom Services [Public Emergency or Public Service] Rules, 2017:

According to these rules, only the Home Secretary of the country and a secretary of a state’s home department can pass such an order.
These also state that any such order should be taken up by a review committee within five days.

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