Summary
In challenges to communications restrictions and prohibitory orders in Jammu and Kashmir, the Court recognised constitutional protection for speech and trade conducted through the internet, prescribed publication, proportionality and review safeguards, and directed immediate reconsideration of existing restrictions. It left undecided whether access to the internet itself is a fundamental right.
Issues
- What constitutional and statutory safeguards govern internet suspension?
- What limits govern prohibitory orders under Section 144 CrPC?
- What relief should follow concerning the existing restrictions and the alleged impairment of press freedom?
Provisions considered
- Article 19, Constitution of IndiaSpeech and trade through the internet attract protection under clauses (1)(a) and (1)(g), subject to lawful and proportionate restrictions. (¶¶ 28, 152)
- Section 5(2), Indian Telegraph Act, 1885Public emergency or public safety and the prescribed necessity conditions govern suspension of telecommunications. (¶¶ 89, 92, 99)
- Rule 2, Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017Reasoned, competent orders, publication and review are required; indefinite suspension is impermissible and periodic review must occur within seven working days of the preceding review. (¶¶ 84, 96, 100, 152)
- Section 144, Code of Criminal Procedure, 1973Emergency preventive powers require material facts, proportionality, the least intrusive measure and effective judicial scrutiny. (¶¶ 105, 123, 129, 140, 152)
Held
- Speech and professional or commercial activity through the internet enjoy Article 19 protection. The Court did not decide whether internet access itself is an independent fundamental right. Restrictions require lawful grounds and proportionality, including consideration of less intrusive alternatives. (¶¶ 28, 70, 152)
- Suspension orders must be temporary, proportionate and judicially reviewable. Until the regulatory gap is filled, the Review Committee must review within seven working days of its previous review. All operative and future suspension and Section 144 orders must be published to permit challenge. (¶¶ 100, 136, 152)
- Section 144 may prevent an apprehended emergency but cannot suppress legitimate democratic expression. Orders must disclose material facts and balance rights against the exigency through the least intrusive restriction; repetitive orders constitute abuse. (¶¶ 118, 123, 133, 140, 152)
- The authorities must immediately review existing internet suspension and Section 144 orders, revoke suspension orders inconsistent with the declared law, and consider access to government websites, limited banking, hospitals and essential services where restoration is not immediate. (¶ 152)
- The evidence did not warrant further adjudication of the newspaper petitioner’s alleged chilling effect; the appropriate causal standard was left open. Governments must respect press freedom and accommodate journalists. (¶¶ 149, 150, 151)
Result
Writ petitions and pending applications disposed of with declarations and directions for publication and immediate review of restrictions, revocation of unlawful suspension orders, periodic review within seven working days of the previous review, and consideration of essential internet-based services. No general direction for immediate restoration of all internet services was issued.