In a major pronouncement, the Supreme Court has declared that any action by an official of the state that shuts down the internet in any part of India must be temporary, and adhere to the doctrine of proportionality. In Anuradha Bhasin vs Union of India, the apex court last week noted that freedom of speech and the right to carry on trade or business were provided protection by Article 19(1) of the Constitution, and that the internet was a crucial method by which these rights were exercised. In the past, the Kerala High Court had also declared that access to the internet was necessary to exercise the right to education and the right to privacy. In other words, there is now ample judicial precedent to indicate that cutting off access to the internet is effectively prohibiting the exercise of fundamental rights and, therefore, is subject to the same stringent limits of state power. In India, such rights are not absolute, but can only be curtailed within strict constitutional parameters.
The context for the court’s action is the months-long shutdown by the state of telecommunications networks in Kashmir, particularly access to the mobile internet. This has effectively rendered the erstwhile state incommunicado, cutting off individuals from their livelihoods and family members from each other. This shutdown followed the revocation of Article 370 and the bifurcation of the state, which happened alongside the detention of a large number of mainstream political leaders. The court has, unfortunately, not acted speedily enough to address the Union government’s actions in Kashmir, and even now it has not given full relief to the people of the Valley, who have been denied their rights since August 4 of last year. However, it has at least opened the door for a review of this specific shutdown and made future shutdowns more difficult. It has also said that the competent authority under the 2017 IT Rules is the Union home secretary and, thus, unless confirmed by this authority any orders for a shutdown will cease to apply in 24 hours. The court’s views are welcome because there have been multiple internet shutdowns in various parts of India, and the number and duration of these have been growing. India is among the jurisdictions with the highest number of such shutdowns, according to international researchers.
Unfortunately, local authorities have decided that part of their powers under Section 144 of the Criminal Procedure Code is the ability to turn off the mobile internet in their areas. In many places, questions about the reasoning behind this decision have been brushed off with the standard “national security” or “law and order” argument. The court has said that challenges to shutdowns have suffered because the authorities have failed to provide proper transparency regarding those decisions. This has meant that the test of proportionality is impossible to apply, which is a violation of the Indians’ fundamental rights. It has thus ordered that their reasoning be made public, be subject to proper review, and be re-examined every seven days. The court could perhaps have gone further and ensured the review committee, as in many other democracies, is composed of members of other branches of government and not just bureaucrats representing the executive.―Business Standard