SC condemns repression of dissent, calls Internet a right

Resmi Sivaram

The Supreme Court of India on Friday ordered restoration of the Internet in Jammu-Kashmir and warned that the imposition of Section 144 cannot be “a tool to repress legitimate expressions of citizens.” “Suspending Internet should be reviewed forthwith. Such suspension can only be for a limited time period and is subject to judicial review.

Suspension of free movement, the Internet and basic freedoms cannot be an arbitrary exercise of power,” the court said.

The court ruled that the right to access the Internet is a fundamental right protected under the Constitution and asserted that prolonged gag of such rights in Jammu Kashmir would be unlawful.

The judges viewed with reservations the imposition of Section 144, which bars gatherings of more than four people.

The three-member bench said: “Section 144 cannot be used to curb liberty; it can be used only where there is a likelihood of incitement of violence and danger to public safety.” “Such restrictive orders cannot be “a tool to repress legitimate expressions of citizens,” the judges asserted.

Justice NV Ramana, who authored the judgment on behalf of the three-judge bench, said power should be used responsibly, and only as a measure to preserve law and order.

The bench, which also comprised Justices R Subhash Reddy and BR Gavai, ordered the administration to restore Internet in essential services, including hospitals, banks and government websites.

“Our limited concern is to find a balance regarding the security and liberty of people. We only here to ensure citizens are provided with their rights. We will not delve into the political intent behind the orders given,” said Ramana, beginning by quoting from Charles Dickens’ “A Tale of Two Cities.” “Test of proportionality needs to be satisfied. This freedom can only be restricted after relevant factors are considered and only if there are no other options,” the judge said.

The court also wanted proof to justify the application of the restrictions.

In its first judgment since the abrogation of Article 370, the court ordered the Jammu-Kashmir administration to place in the public domain all its orders on restrictions within seven days.

The apex court said every existing restriction including Section 144 and the Internet — should be supported by sufficient material and be amenable to judicial review, as it could have serious implications on the fundamental rights of affected parties.

The Centre had justified the restrictions citing national security and said that these were temporary measures in view of the prevailing situation in the region which was facing the brunt of cross-border terror.

Solicitor General Tushar Mehta consistently maintained that during the imposition of the restriction in the Jammu and Kashmir region, neither a single life was lost nor a single bullet was fired.

Senior advocate Kapil Sibal, representing Congress leader and former chief minister Ghulam Nabi Azad, had said that restrictions have virtually abrogated the fundamental rights and paralysed the lives of seven million people in the region.

Restrictions have been imposed under the garb of public tranquillity, public order and national security, but national security does not appear in the order imposing Section 144 of the Criminal Procedure Code in the region, he said.

Hearing will restart on Jan.21.

The court said that even a temporary shutdown of the Internet cannot be “arbitrary.” It will be subject to judicial review.

Any curbs on free speech, restricting Internet access must also be proportional — as laid out under Article 19 (2) of the Constitution.

“(We) need to distinguish between Internet as a tool and freedom of expression through Internet,” the bench said. “Expression through Internet has gained contemporary relevance and is part of freedom of expression under Article 19. Therefore, any restrictions must subscribe to conditions laid down in Article 19.

“Expression through Internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, freedom of speech and express through the Internet is an integral part of Article 19(1)(a) and any restriction on it must be in compliance with Article 19(2) of the Constitution.” The court rejected the Kashmir administration’s argument that the court cannot examine all the orders issued under Section 144.