Democracies generally see crushing of the Rights of the people at the hands of Legislature or Executive or both. Judiciary acts as the Light to the people and protects their Rights from being infringed. Judiciary at least in Indian context plays a major role in checking and balancing the powers of the "The State” and the Rights of the people.
To actually understand Judiciary’s might, we can say that Judicial words are like Oil, which lights up the lamp of the Rights though fire (Judges) never touched the Constitution. The Judicial Light has all the might. The Judiciary knows all things as it is The Protector and The Guardian of the Fundamental Rights.
The High Court of Kerala through the female power and the might of Justice P.V Asha in Faheema Shirin versus State of Kerala 2019 (para 13), had held that the right to have access to Internet is the part of right to education as well as right to privacy under Article 21 of the Constitution of India.
Further, the Apex Court had made it clear that the freedom of expression included the right to be informed and right to know and feeling of protection of expansive connectivity.
Many States in India have faced the wrath of Internet shutdowns in the past years. The Union Territory of Jammu and Kashmir has a history of terror attacks and a similar long history of lockdowns and shutdowns.
“It was the best of times, it was the worst of times,
it was the age of wisdom, it was the age of foolishness,
it was the epoch of belief, it was the epoch of incredulity,
it was the season of Light, it was the season of Darkness,
it was the spring of hope, it was the winter of despair,
we had everything before us, we had nothing before us,
we were all going direct to Heaven, we were all going direct the other way-
in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.”
PROCEDURE OF INTERNET SHUTDOWNS IN INDIA
The procedural mechanism contemplated for restrictions on the Internet, is twofold: first is contractual, relating to the contract signed between Internet Service Providers and the Government, and the second is statutory, under the Information Technology Act, 2000, the Criminal Procedure Code, 1973 and the Telegraph Act.
"Section 69A of the Information Technology Act, 2000 read with the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 allows blocking of access to information. This Court, in the Shreya Singhal case, upheld the constitutional validity of this Section and the Rules made thereunder. It is to be noted however, that the field of operation of this section is limited in scope. The aim of the section is not to restrict/block the internet as a whole, but only to block access to particular websites on the internet. Recourse cannot, therefore, be made by the Government to restrict the internet generally under this section.”
- Anuradha Bhasin versus Union of India (para 81)
It is to be noted that prior to 2017, orders of internet shutdowns were passed under Section 144, Code of Criminal Procedure, 1973.
In 2015, the High Court of Gujarat, in the case of Gaurav Sureshbhai Vyas v. State of Gujarat, the Court upheld the restriction imposed by the Magistrate of shutting down mobile internet under Section 144, Cr.P.C.
The position has changed since 2017, with the passage of the Suspension Rules under Section 7 of the Telegraph Act. With the promulgation of the Suspension Rules, the States are using the aforesaid Rules to restrict telecom services including access to the internet.
THE DIRECTIONS FOR SHUTDOWN OF INTERNETS ARE TO BE GIVEN BY:
In unavoidable circumstances, where obtaining of prior direction is not feasible, such order may be issued by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or the State Home Secretary, as the case may be:
Provided that the order for suspension of telecom services, issued by the officer authorised by the Union Home Secretary or the State Home Secretary, shall be subject to the confirmation from the competent authority within 24 hours of issuing such order:
Provided further that the order of suspension of telecom services shall cease to exist in case of failure of receipt of confirmation from the competent authority within the said period of 24 hours.
The Central Government or the State Government, as the case may be, shall constitute a Review Committee.
(i) The Review Committee to be constituted by the Central Government shall consist of the following, namely:-
The Review Committee to be constituted by the State Government shall consist of the following, namely:-
This Review Committee shall meet within five working days of issue of directions for suspension of services due to public emergency or public safety and record its findings whether the directions issued under sub-rule (1) are in accordance with the provisions of sub-section (2) of section 5 of the said Act.
Rule 2(2) is also extremely important, as it lays down requirements for orders passed under Rule 2(1):
The reasoning of the authorised officer should not only indicate the necessity of the measure but also what the “unavoidable” circumstance was which necessitated his passing the order.
-Anuradha Bhasin versus Union of India 2020 (para 86)
The second requirement under Rule 2(2) is the forwarding of the reasoned order of the competent authority to a Review Committee which has been set up under the Suspension Rules, within one working day.
-Anuradha Bhasin versus Union of India 2020 (para 88)
Rule 2(6) is the final internal check under the Suspension Rules with respect to the orders issued thereunder.
Rule 2(6) requires the concerned Review Committee to meet within five working days of issuance of the order suspending telecom services, and record its findings about whether the order issued under the Suspension Rules is in accordance with the provisions of the main statute, viz., Section 5(2) of the Telegraph Act.
-Anuradha Bhasin versus Union of India 2020 (para 88).
The court had in past interpreted Section 5 of the Telegraph Act. In the case of Hukam Chand Shyam Lal v. Union of India, (1976) 2 SCC 128, a Four-Judge Bench of this Court interpreted Section 5 of the Telegraph Act:
"Firstly, the occurrence of a “public emergency” is the sine qua non for the exercise of power under this section."
Finally, it must be noted that although the Suspension Rules does not provide for publication or notification of the orders, a settled principle of law, and of natural justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available. Any law which demands compliance of the people requires to be notified directly and reliably. This is the case regardless of whether the parent statute or rule prescribes the same or not.
It is to be understood that the reason for publication of orders is that, in democracies there is a system of “Check and Balance”. Therefore, if anyone is of the view that any such order is illegal or illegitimate he shall be given a chance to check it through Judiciary. Thus, he must have the order for challenging it.
Lastly, it is necessary to reiterate that complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’.
NUMBER OF TIMES INDIA BECAME NON- DIGITAL INDIA
- 95 times internet has been shut in 2019
- 213 days (4th August 2019- 4th March 2020)- Kashmir,Jammu and Kashmir
- 145 days (4th August 2019-27th December 2019)- Kargil
- 45-day internet shutdown in Darjeeling in West Bengal due to political demonstrations and protests from activists seeking a separate state while Nawada in Bihar experienced a 40-day shutdown due to communal clashes.
A report by The Indian Council for Research on International Economic Relations (ICRIER), found that 16,315 hours of intentional internet downtime between 2012 and 2017 has cost the Indian economy $3.04 billion.
The petitioner in Faheema Shirin versus State of Kerala 2019 while referring to the Information Technology Policy, 2017 stated that the institution of learning is fundamental in developing scientific temper and facilitating IT access.
"Scientific temper” is mentioned in the Indian Constitution under Chapter on Fundamental Duties (Article 51(c)).
Though the Governments all over the world wish to suppress the Rights of the citizenry, which they can definitely do legally by following the noble principle of proportionality, cracking the nut with a hammer has its own happiness and satisfaction.
India’s new Education Policy 2020 is now available online. It has 60 pages in total and mentions “Scientific temper” at no less than 4 different places.
As has been rightly pointed out in Vishaka & Ors. v. State of Rajasthan & Ors. [AIR 1997 SC 3011 : (1997) 6 SCC 241] held that in the light of Article 51(c) and 253 of the Constitution of India and the the role of judiciary envisaged in the international conventions and norms are to be read into the fundamental rights guaranteed in the Constitution of India in the absence of enacted domestic law occupying the fields when there is no inconsistency between them.
India being a Nation which originally was rights oriented and did not have any chapter on Fundamental Duties, which were added lately by the 42nd Amendment to the Constitution in 1976, and even after that it was not included under Part III of the Constitution which is open to challenge on violation, but to Part IV of the Constitution, and a Part IV A was constituted for the said purpose, should respect and uphold the Rights of the people who are only subject to “reasonable restrictions.”
Fundamental Rights are those human rights which are recognised by the Holy Book of a Nation. These rights can be well enhanced and improved by the Legislature and on its failure by the Lordships. These rights are neither given nor are at the realm of the country heads to be taken away as easily as they are presently and in the near past.
The Judiciary has in past and present shown signs of its might in protecting the interests of the people. The Judiciary is the only saviour of any country. It can be the maker as well as the destroyer of democracies. Therefore, Light upon Light Judiciary shall guide and we shall with love abide.