Right to Internet with Special focus to Jammu and Kashmir (The Firdaus on Earth)

 ABSTRACT

Internet, a human right, impacts the lives of millions. It would not be wrong to say that the same rights people have offline must also be protected online. Internet is a source of living, education and communication for many across the globe.

Indian courts also have judged in the affirmative. The High Court of Kerala have declared the right to internet as a part of right to education as well as right to privacy under Article 21. The Apex Court have declared the right to internet as a part of Article 19 (1) (a) and Article 19 (1) (g).

Expression is a matter of liberty and right. It is a right twice blessed in a democracy. Freedom of expression is integral to the expansion of individual liberty. Without freedom of speech, the appeal to reason which is the basis of democracy cannot be made.

Laski defines ‘Democracy is a Government by discussion’ could be successful only when there is effective participation of people in the Government. For this the people need to be educated.

The processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.

The fundamental rights need to be balanced with the reasonable restrictions imposed on it. Here comes the concept of “proportionality”. To put it pithily, when a law limits a constitutional right, such a limitation is constitutional if it is proportional.

The High Court of Kerala through the female power and the might of Justice P.V Asha in Fahima Shirin , 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.

The internet is shut fully in bad times in the valley, while 2 G signals are allowed in times less bad.

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.

81. "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.”

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

(Anuradha Bhasin)

BY:

• -Secretary to the Government (Ministry of Home Affairs) or
• -Secretary to the State Government in-charge of Home Affairs

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.

DIRECTIONS OF SUSPENSION TO BE CONVEYED TO:

• - Telegraph Authority or
• - Designated Officer of Service Provider or
• - Not Below Superintendent of Police

The Central Government or the State Government, as the case may be, shall constitute a Review Committee.

REVIEW COMMITTEE

(i) The Review Committee to be constituted by the Central Government shall consist of the following, namely: -

- Cabinet Secretary, chairman

-Secretary to the Government of India (In charge Legal Affairs), member

-Secretary to the Government of India (Department of Tele-communications), member 

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):

• - Passed by Competent Authority
• - A well-reasoned order
• - Application of mind
• - Taking into account changed circumstances

In Anuradha Bhasin (supra) the Court held; 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.

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.

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.

The court had in past interpreted Section 5 of the Telegraph Act. In the case of Hukam Chand Shyam Lal v. Union of India , 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."

In Anuradha Bhasin (supra) it was held 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’.

Thus, the Court ordered the Government to review its suspension orders and subsequently limited the Government the communications to 2G mobile connection.

FOUNDATION FOR MEDIA PROFESSIONALS

(Reference: Global Freedom of Expression: Columbia University)

Later, three petitioners sought the restoration of 4G internet service and the quashing of the impugned order restricting internet in the union territory of Jammu and Kashmir. The joint petitions centred on the claim that the suspension of internet services, particularly during the covid-19 pandemic and national lockdown, was a violation of the right to health, education, freedom of speech, freedom of business and access to justice. 

The submission further argued that the Respondent had failed to abide by the minimum standards for restricting internet access set out by the Supreme Court in Anuradha Basin and the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (Telecom Suspension.

The Court while looking into the petitions brought by the Foundation for Media Professionals, a lawyer, Soayib Qureshi and the Private Schools Association of Jammu and Kashmir ordered, the constitution of a Special Committee to review the restriction of internet mobile service to 2G in the Union Territory of Jammu and Kashmir. 

The Court recognised that the rights to freedom of speech and expression, health, education and business must be balanced against the prevailing national security concerns. 

Applying the minimum standards for internet restrictions set out in Anuradha Bhasin (supra), the Court held that the impugned order did not “provide any reasons” for the blanket enforcement of the shutdown across all districts. 

However, while the petition would “merit consideration” in “normal circumstances”, the particular “compelling circumstances of cross border terrorism” prevented the Court from finding a constitutional violation. [para. 19] Rather, the Court directed the constitution of a Special Committee, led by the Indian Home Secretary, to evaluate the necessity of the internet restriction in Jammu and Kashmir.

The Judgement of Foundation for Media Professionals (supra) was delivered on May 11, 2020. This led to a formation of a “Special Committee” by the Government.

This Special Committee comprised of a) Secretary, Ministry of Home Affairs (Home Secretary), Government of India, (b) Secretary, Department of Communications, Ministry of Communications, Government of India and (c) Chief Secretary, Union Territory of Jammu and Kashmir.

While replying to a contempt petition filed by FMP, the Ministry of Home Affairs stated that the Special Committee has decided against restoring the 4G internet in the region for now.

This, according to FMP, amounted to “wilful disobedience” of the Supreme Court’s direction.

Ministry of Home Affairs in its counter affidavit which is verified on July 21, 2020 also informs the Court that the next meeting of the committee will be held in two months.

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- A (h)).

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. 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.”

CONCLUSION

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 United Nations Human Rights Council has passed a non-binding resolution condemning countries that intentionally disrupt citizens' internet access. The resolution builds on the UN's previous statements on digital rights, reaffirming the organisation's stance that "the same rights people have offline must also be protected online," in particular the freedom of expression covered under article 19 of the Universal Declaration of Human Rights.

Internet has been granted a status of fundamental right and a part of right to education and privacy, as well as a right under Article 19 (1)(a) and Article 19 (1)(g).

Thus, in order to curb a fundamental right, the four tests of proportionality must be followed namely, a) the action must be sanctioned by law; b) the proposed action must be necessary in a democratic society for a legitimate aim; c) the extent of such interference must be proportionate to the need for such interference; d) There must be procedural guarantees against the abuse of such interference.