J&K restrictions: Freedom of speech, biz via Net are basic rights, says SC

Orders J&K curbs review in a week; says Sec 144 can't be used as a curb on democratic rights

The Right to Freedom of Expression through the internet is part of Article 19(1)(a) of the Constitution,  the Supreme Court held on Friday. It is subject to reasonable restrictions, which apply to all fundamental rights, and is subject to judicial review, it said.

Those carrying out business via the internet also have the fundamental right to continue it, the apex court said, and directed the government to review the internet suspension in Jammu and Kashmir (J&K) within seven days.

The court, however, did not provide immediate relief to petitioner Anuradha Bhasin, Kashmir-based publisher of Kashmir Times and journalist; and Ghulam Nabi Azad, Congress leader and former chief minister of the erstwhile state. The judgment was delivered by a Bench of justices N V Ramana, R Subhash Reddy, and B R Gavai after reserving orders on November 27 last year.

Pronouncing the verdict, Justice Ramana said the court would not delve into the political intent of the orders imposing restrictions in Kashmir. He said, “Liberty and security are always at loggerheads. It is the court’s job to ensure that citizens are provided all rights and security.”

Disagreement does not justify destabilisation, the Bench observed, adding that a complete curb on the internet must be considered by the state only as an extraordinary measure. The order also said: “Powers under Section 144 of CrPC cannot be used as a curb on legitimate expression of democratic rights.” 

Section 144 of the Code of Criminal Procedure (CrPC) is a remedial and preventive measure and must be subject to the test of proportionality. It can only be used if there is a likelihood of violence and danger to public safety, the court held.

The order said indefinite suspension of services could not be allowed and that the suspension could only be temporary. Any such order must adhere to the principle of proportionality and would be subject to judicial review.

The court went on to direct the government to publish future orders passed under Section 144 of CrPC and orders suspending the internet and telecom services.

The three-Judge Bench heard a batch of petitions that had challenged the validity of government’s move to impose restrictions on media, communications, transport, and to impose curfew in parts of J&K immediately after the abrogation of Article 370.

Ghulam Nabi Azad had argued that basic livelihood had been deeply affected by the fetters on the internet, broadband and landline connectivity. Industries such as tourism, handicrafts, manufacture, construction, cultivation, agriculture and information technology have been brought to a state of cessation, with the economy in the region suffering losses running into thousands of crores or rupees. Access to basic healthcare too, he argued, was impeded, with people in the Valley unable to avail of the government’s Ayushman Bharat scheme. Over and above all this, the ban has meant that people in the Valley have been entirely cut out from the rest of India. Residents outside the state have been unable to speak to their families in Kashmir, leading to a great deal of mental stress and anxiety, Azad said.

Jaiveer Shergill, who is also a practicing Supreme Court lawyer, said the top court made an important theoretical observation regarding the five-month internet shutdown in Kashmir. But the lawyer felt “teethy directions” to deter the “thick-skinned” BJP were the need of the hour, asking, "Who will compensate for $1 billion trade loss?" 

PTI quoted locals as welcoming the order. “It is a piece of very happy news for us, a huge relief, as the internet has been suspended for over five months now. We really hope that services will be resumed as soon as possible now,” said Ishtiyaq Ahmad, a businessman in Lal Chowk area of Srinagar.

The Congress party said: “The Supreme Court rules that tactics like indefinite internet shutdowns and indiscriminate use of Section 144 to silence dissent are unacceptable in a democracy. We hope this serves as a reminder to the tyrant duo that law and constitution is above their divisive policies.”