‘CITIZENS HAVE RIGHT TO DISSENT PEACEFULLY; ALLOW PRESS TO WORK FREELY’
Court asks govt to review internet curbs in Kashmir and revoke those inconsistent with its ruling in a week, advises responsible use of Sec 144
The Supreme Court said internet access was integral to freedom of expression as guaranteed by the Constitution, upheld the right of citizens to dissent peacefully and declared that governments should ensure the press is allowed to do its job freely. The top court was ruling on petitions challenging the internet shutdown and curbs on movement imposed in Jammu and Kashmir under Section 144 of the Criminal Procedure Code (CrPC) after the government abrogated Article 370 and broke up the state into two Union territories on August 5.
“Freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19
(2) of the constitution,”
said the court. “Freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).”
The three-member bench led by justice NV Ramana, next in line to be chief justice, asked the government to review internet curbs in Kashmir and revoke those inconsistent with its ruling in a week. The other members of the bench were justices R Subhash Reddy and BR Gavai. In areas where internet access was unlikely to be restored in the near future in the Jammu and Kashmir Union territory, the top court directed that it should be granted to all government websites, banking/e-banking, hospital services and 128 essential services.
The court also said that orders restricting internet or the movement of people under Section 144 be placed in the public domain so that they can be challenged in the appropriate judicial forums. The section has been widely used in Kashmir, Delhi, the Northeast, Uttar Pradesh, Karnataka and elsewhere to black out the internet and crack down on recent protests over Kashmir as well as the Citizenship Amendment Act across the country.
Curbs Only for Limited Periods
Section 144 bars four or more persons from assembling in public. “Our constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144, CrPC, unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger,” the court said.
“Orders passed under Section 144, CrPC have direct consequences upon the fundamental rights of the public in general. Such a power, if used in a casual and cavalier manner, would result in severe illegality. This power should be used responsibly, only as a measure to preserve law and order.”
Repetitive orders under Section 144 would be an abuse of power, it said.
The court said freedom of speech and expression and the right to trade and commerce through the internet are fundamental rights under the constitution and hence can only be subjected to reasonable curbs for limited periods. A separate five-judge bench is hearing petitions on the constitutional validity of Article 370’s abrogation. Hearings in that case will resume on January 21.
The court said people had a right to express dissent in a non-violent manner and expressed its disapproval of any law made in a “clandestine” way, likely referring to the grievance of petitioners that the public didn’t get a chance to air its views on the change of status of the former state. The court also observed that news organisations shouldn’t be muzzled.
“Responsible governments are required to respect the freedom of the press at all times,” it said. “Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely.”
The bench frowned at the government’s refusal to submit all orders imposing restrictions for judicial scrutiny. The authorities had only placed sample orders before it.
The court said that the government has the power to completely ban internet and invoke Section 144 over a large area for a long period on security grounds but this must be invoked only when it is “necessary” and “unavoidable.” It cannot be done a “casual and cavalier manner” as it has the effect of invalidating the fundamental rights of citizens. Any exercise of such power must be proportionate to the ends, it said. The authorities must, before invoking any such power, consider whether the ends can be met by resorting to other, less restrictive measures. The internet suspension rules under the Telegraph Act are not intended to restrict access as a whole but only block particular websites, it said. “Recourse cannot, therefore, be made by the government to restrict the internet generally under this section,” he said Under the rules, such orders have to be scrutinised by a review committee within a specified period. The rules specify that any suspension must be temporary. The court asked the government to correct the “gap” in the law — by stipulating a period for such curbs — to ensure that the rules are proportionate. The court shot down the government’s argument that it was technically impossible to “selectively” block the internet. The proportionality requirement makes an indefinite suspension “impermissible,” the court said.