14th January – Net freedom

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.

The context –

  • 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.

Case –

  • 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.
  • The court has said that challenges to shutdowns have suffered because the authorities have failed to provide proper transparency regarding the internet shutdown decisions. This has meant that the test of proportionality is impossible to apply, which is a violation of the Indians’ fundamental rights.

Background –

  • 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.

Implications –

  • The court order has 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.

Backdoor entry –

  • The 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.

Way forward –

The court could go further to ensure that the review committee (to review internet shutdown decisions by the executive authorities), as in many other democracies, must be composed of members of other branches of government and not just bureaucrats representing the executive.

SourceBusiness Standard

QUESTIONThe ambiguous nature of terms such as ‘national security’ and ‘law and order’ infringe upon the genuine violations of fundamental rights of Indian citizens. Examine it in the context of recent internet shutdown and the consequent judicial pronouncement against the decision.

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