In a significant ruling, the Supreme Court today held that the Right to Freedom of Expression (FoE) through the internet is part of Article 19(1)(a) of the Constitution, and that the same restrictions under the constitutional. provision would apply..This judgment was delivered by a Bench of Justices NV Ramana, R Subhash Reddy, and BR Gavai after reserving the same on November 27 last year. Pronouncing the verdict, the Justice Ramana said at the outset that 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 the citizens are provided all rights and security."Disagreement does not justify destabilization, the Bench went on to observe. Further, a complete curb on the internet must be considered by the State only as an extraordinary measure."Power under Section 144 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.Moreover, it was held that indefinite suspension of services is inpermissible and that the suspension can 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 CrPC and orders suspending internet and telecom services. It also directed for these orders to be reviewed by the concerned authority within seven days, and for future orders to be reviewed in a timely manner.The three-Judge Bench heard a batch of petitions which had challenged the validity of givernment's move to impose restrictions on media, communications, transport, and to impose curfew in parts of Jammu & Kashmir immediately after the abrogation of Article 370..The lead petitioner in the case was Editor of Kashmir Times, Anuradha Bhasin. A number of other petitions were tagged with this matter, including the one filed by Senior Congress leader and Rajya Sabha MP, Ghulam Nabi Azad.The petitioners in the case had challenged the restrictions imposed in the Kashmir region, including those on media, communications, and internet, as well as Section 144 restrictions on the grounds that the same did not fulfill the test of reasonableness. The government, on the other hand, justified the curbs as preventive steps taken in order to ensure that law and order was maintained in the wake of the abrogation of Article 370.It was argued by the Attorney General for India KK Venugopal that looking at the historical evidence, it would have been foolish of the government to not take these preventive steps.The petitioners argued that the day to day lives of the people living under these restrictions was adversely affected, with children being prevented from going to school, emergency facilities like hospitals and medical care units facing problems on account of communication restrictions, and businesses and banking facilities taking a hit on account of no internet.The government countered this argument by submitting that rights were being conferred upon the people of Jammu & Kashmir for the first time in seventy years. Solicitor General for India Tushar Mehta enumerated various schemes and laws that would become applicable to the people of the erstwhile State of Jammu & Kashmir after the revocation of its special status.The government justified the internet restrictions on the grounds that the same prevented the spreading of anti-India messaging propagated from across the border and was done to maintain peace and order in the valley. The government also invoked the instance of 2016 when the internet was shut down in the valley for almost three months after the killing of Hizbul operative Burhan Wani. Attorney General Venugopal further told the Court that the preventive steps had led to a situation where not a single bullet was fired. Solicitor General Mehta submitted that normalcy was being restored gradually.The petitioners also stressed on the fact that the citizenry was not informed of orders under Section 144 being passed. The orders under Section 144 and others directing for imposition of various restrictions ought to be produced before the Court, at the very least, the petitioners had argued.SG Mehta argued that as of November, restrictions from Jammu and Ladakh had been lifted and as regards Kashmir, various facilities like landlines were restored. He argued that with the phased lifting of curbs, the litigation would be rendered as an academic exercise. To this, Senior Counsel Kapil Sibal said, “past cannot be changed, but if we do not uphold the principles of democracy and national security, it will be a problem.".To read more about the arguments made in the matter, click the links below. Read an account of the November 5 hearing here, of the November 6 hearing here and the November 7 hearing here. An account of the hearing held on November 19 can be read here. An account of the hearing that took place on November 21 can be read here. Read an account of the hearing on November 26 here. .Read the Judgment.Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.
