Central government defends internet shutdowns; tells Supreme Court regulating free speech in certain situations permissible

Restricting free speech in certain situations is a constitutionally permissible form of regulation, the Central government told the Supreme Court while defending internet shutdowns [Software Freedom Law Centre India vs Arunachal Pradesh and ors]..The Ministry of Communications stated on affidavit that the Indian Telegraph Act read with the Temporary Suspension of Telecom Rules, 2017, allow internet bans on grounds of public safety and/or emergency. "It is submitted in fact, across jurisdictions, fetters on free speech in certain situations, is recognised as a constitutionally permissible form of regulation ... the petitioners cannot decide the appropriate course of administrative action under a valid statute," the affidavit dated March 17 said.It underscored that the rights to free speech under Article 19 of the Constitution, and privacy, are not absolute but are subject to reasonable restrictions under Article 19(2). "The Petitioners have completely misunderstood the purport of the words 'public order' and public interest and are arraigning a completely erroneous and limited meaning to the same ... a law framed for the said purpose is clearly protected under Article 19(2)," the affidavit said.The affidavit was filed in response to a petition challenging internet shutdowns by various States arbitrary and unlawful and seeking uninterrupted internet services.The plea was filed taking specific objection to internet shutdowns by Central and State governments to prevent cheating during exams..The petitioner pointed out that no review committees were being set up to check the legality of orders suspending internet services.Besides, the right to have access to the internet is a part of the right to information as well as the right to health, the petitioner said."The restriction on such a right by the Respondents in the form of imposing internet shutdowns affects the ability of citizens to access information related to COVID-19 and affects the ability of health personnel to disseminate the information," the petitioner argued.The Supreme Court had in September last year issued notice to the Central government in the matter..The Union government in its affidavit refuted contentions that such bans were arbitrary and excessive."Personal opinions of the petitioner or what the consider appropriate, cannot be a factor to judge the same ... proportionality cannot include an essentially legislative or administrative choice to be made.".The government further said that the petitioner was seeking open-ended directions in the nature of an advance ruling, which was not permissible in an omnibus writ petition.The affidavit heavily relied on Sections 5(2) and 7 of the Indian Telegraph Act, which gives competent officers the power to take possession of and intercept telegraphs and messages, and make rules for the same. The said provisos read with the 2017 Temporary Suspension of Telecom Rules allow for internet bans on grounds of public safety and/or emergency, it was emphasised.The extent, duration and kind of restriction on usage of mobile services including data are a relevant factor while evaluating the necessity of such restrictions, the affidavit added."Considering the march of technology and means enabling public order issues to be created, the government machinery is required to act accordingly," it said.Pertinently, it was submitted that during such bans, the use of SMS, voice-call and broadband services are not restricted. Moreover, such restrictions cannot be for more than 15 days, it was pointed out.The principle of proportionality is also a subjective one that competent authorities on ground are best positioned to assess while imposing restrictions, the government said.A bench led by Chief Justice of India (CJI) DY Chandrachud and Justices PS Narasimha and JB Pardiwala today adjourned the matter for hearing in July, after noting it is a pan-India issue.