The Internet is the new marketplace of ideas. It is also a virtual marketplace for goods and services. As such, it has become an integral part of modern life and an important medium for the exercise of the fundamental right to free speech and expression, the right to practise one’s profession and to carry on any trade or business. Article 19(1) of the Constitution guarantees these rights, subject to reasonable restriction(s), as may be imposed by the state.

What are the limits of these rights, and of the power of the state to restrict them? Do the constitutional safeguards apply to these rights when exercised through the medium of the Internet? These, and related issues, were examined by the Supreme Court in a judgment handed down last month. The judgment was delivered on a petition challenging the “communication lockdown”, and other curbs, in the territory of the erstwhile state of Jammu & Kashmir. Through an order for suspension of the telegraph services made under rules of the Telegraph Act, the government had debarred mobile phone and Internet services, as also landline connectivity (“Suspension Rules”). In parallel, it imposed restriction on movement and public gatherings under Section 144 of the Criminal Procedure Code, 1973 (which, however, is not the subject of this article). The government justified these impositions on the grounds that the large-scale violence and unrest it anticipated on account of the reorganisation of the state threatened national security.

Freedom of speech and the Internet

The court recognises that law should imbibe technological developments and cater to societal needs. The court observed that the right to exhibit films, as also the use of airwaves, speech, and expression of individual ideas/viewpoints via the Internet, is a part of the freedom of speech and expression granted to print media under the Constitution of India.

Equally, the Internet is an important tool of trade and commerce. The court observed that the right to practise any profession or carry on any occupation, trade, or business, protected under Article 19(1)(g) of the constitution, includes the right to conduct trade and commerce via the Internet.

Test of reasonableness

The court also noted that the state action to curtail established constitutional rights must be reasonable. It decreed that in order to be held reasonable, the action must withstand the following tests:

· the goal of restrictions must be legitimate;

· before imposing restrictions, the State must assess alternate mechanisms to further the goal;

· the State must adopt the least restrictive measure;

· the degree and scope of restrictions, territorial and temporal, must conform to what is necessary to combat an emergent situation.

Publication of orders

Drawing upon the writings of celebrated theorists like Lon Fuller and Jeremy Bentham, the court concluded that democracy embodies the free flow of information and is committed to transparency and accountability. In other words, it deemed that laws should not be passed in a clandestine manner and, as such, Internet shutdown orders must not only disclose the reasons for such action but also make this information freely available through suitable mechanisms.

Periodic review

The court held that indefinite suspension of Internet services is not permissible; and that orders suspending Internet services must not extend beyond the necessary duration. Further, such orders must be periodically reviewed, within seven days of the previous review, by the high-level review committee constituted under the Suspension Rules.

The verdict

Though the court did not consider whether access to the Internet is a fundamental right, its recognition of the constitutional protection of freedom of speech as an integral part of the internet is a welcome decision. The need for clarity on standards of judicial review for internet shutdown orders is equally appreciated. However, the court stopped short of calling for the prohibitive orders under challenge to examine their validity. In that sense, it has left the task unfinished.

Views are personal.

Amar Gupta is a partner, and Saumay Bhasin is an associate at J Sagar Associates.

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