The legality of internet shutdown and movement restrictions are challenged under
Article 32 of the Constitution. This issue begins right from 05.08.2019, when
Constitutional Order 272 was issued by the President, applying all provisions of
the Constitution of India to the State of Jammu and Kashmir, and modifying
Article 367, the Interpretation of it in its application to the State of Jammu
The Supreme Court of India ruled that an undefined restriction of internet
services would be illegal and that orders for internet shutdown must satisfy the
tests of necessity and proportionality.
The Court recapitulates that freedom of speech and expression included right to
the internet and therefore was protected under the constitution. However, it
could only be restricted when there is a risk against citizens and in the name
of national security.
The court ruled that this order which imposes a complete restriction on the
internet should be published for the public and was also subject to judicial
The issue begins right from 05.08.2019, when Constitutional Order 272 was issued
by the President, applying all provisions of the Constitution of India to the
State of Jammu and Kashmir, and modifying Article 367, the Interpretation of it
in its application to the State of Jammu and Kashmir.
Subsequently, the trip of the outsiders was cut short and arrangements were made
for them to go back, educational institutions and offices were also shut down
until further orders. District Magistrates, comprehends breach of peace and
tranquillity, and hereafter imposed restrictions on movement and public
gatherings by applying Section 144 of Cr.P.C. On 04.08.2019, internet services,
mobile connectivity and landline were shut down until further orders.
The petition W.P. (C) No. 1031 of 2019, was filed by Ms Anuradha Bhasin. She was
the executive editor of the Kashmir Times Srinagar Edition who argued internet
to be essential for the modern press. The petitioner pointed out that print
media could come to an end without internet since the newspaper had not been
published from 06.08.2019.
The petitioner's argument was about the failure of the government to give a
valid reason for passing such order as required in Suspension rules. She
additionally pointed out the reason for such orders to be passed was wholly
based on mere apprehension of risk interns of law and order which was not the
case. The contention of the petitioner was to point that the government needs to
find a way to balance the measures necessary to maintain national security on
one hand and the rights of the citizens. However, the state is establishing it
as the ground for passing the order to restrict the rights of the citizens. He
claimed that restrictions were to be imposed temporarily, however, are imposed
for more than a hundred days.
It is necessary to publish order is a component of natural justice and it even
is made accessible to the general public. The state cannot claim any kind of
privilege before the court for not producing such judgements. Furthermore, the
proportionality test was upheld by the court and must be seen that restrictions
imposed on the fundamental rights of citizens are reasonable or not.
The subsequent petition W.P. (C) No. 1164 of 2019 was filed by Member of
Parliament, Mr Ghulam Nabi Azad, whose argument was that the state cannot claim
any kind of privilege before the court for not producing such orders.
Additionally, he stated that the national emergency can only be declared in a
handful of cases, whereas in this case, neither internal not external disruption
exists. There was no apprehension in the law and order of the state and hence no
need of passing Section 144 of CrPC. His contention was not to restrict
everybody however to impose specifically against the people of the certain
category who neglect the peace
The state should impose the least restrictive measures and must balance the
fundamental rights of citizens with the safety of people. And imposing
restrictions on the internet, it impacts not only freedom of speech and
expression but also the freedom to carry any trade, profession or occupation.
However this petition was withdrawn during arguments, the petitioner suggested
that the restrictions imposed injure the rights of the law-abiding citizens.
On the other hand, the respondent side Mr K.K. Venugopal the Attorney General
submitted that the condition of Jammu and Kashmir having militancy has to be
taken into account. He produced the in the court the contention for passing such
order was after taking the cognisance of the circumstance in the state. The mere
reason was to take preventive measures knowing about the history of internal and
external militancy, otherwise it could lead to huge barbarity. He compared the
circumstances to that of 2016 when terrorist was killed and similar actions were
taken by the officials.
Mr Tushar Mehta, the Solicitor General expressed that the intention was to
protect the citizens which are the first and foremost duty of the state. He
considered such orders to be necessary to have peace in the state. He claimed
that such orders are systematically being relaxed depending upon the present
circumstances of the region.
The Magistrates contended that there is almost full relaxation which was earlier
imposed based on threat perception. All televisions, radio channels and
newspapers are functioning including the one where the petitioner is working.
The orders passed under Section 144 of CrPC can be preventive for the safety of
the citizens. He justified that it is impractical to segregate the ones who are
agitators from the peacemakers. He argued that the internet was never restricted
in Jammu and Ladakh. Even though, through social media messages can be sent and
received to people to incite ruckus.
The intention of restricting internet in some regions was not only social media
but also dark web, which allows sale and purchase of illegal weapons. He
concluded that all the orders passed have followed the procedure in Suspension
Rules and are being reviewed strictly.
Whether the freedom of speech and expression and freedom to practise any
profession, or to carry on any occupation, trade or business over the Internet
is a part of the fundamental rights under Part III of the Constitution?
Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019
was violated due to the restrictions?
Whether the imposition of restrictions under Section 144, CrPC were valid?
Whether the Government can claim exemption from producing all the orders passed
under Section 144, CrPC?
Whether the Government's action of prohibiting internet access is valid?
Constitution of India: Article 19(1)(a) and Article 19(1)(g)
Code of Criminal Procedure, 1973: Section 144
Information Technology Act, 2000
Information Technology (Procedures and Safeguards for Blocking for Access of
Information by Public) Rules, 2009
The Telegraph Act, 1885
The Temporary Suspension of Telecom Services (Public Emergency or Public Safety)
1: Freedom of speech and expression and freedom to practise any
profession, or to carry on any occupation, trade or business over the Internet
is a part of the fundamental rights under Part III of the Constitution.
The Supreme court held that freedom of speech and expression through the
internet is one of the integral parts of Article 19(1)(a). They stressed upon
the prior ruling in the case of Indian Express V. Union of India
freedom of print medium is an essential right under Article 19(1)(a).
Subsequently, in the case of Odyssey Communications Pvt. Ltd. V. Lokvidayan
, it was held that the right of citizens to exhibit films is now
protected under Article 19(1)(a).
Internet is one of the fundamental means to broadcast information and hence
freedom of speech and expression through the internet is a fundamental right
under the Article.
Although the government can impose reasonable restriction and only if they are
following Article 19(2). Reasonable is limited to the interest such as
sovereignty, integrity, security, friendly relations with the foreign States,
public order, decency or morality or contempt of Court, defamation or incitement
to an offence, although it also includes complete restriction however only in
The Court held that:
the right to freedom of speech and expression under Article
19(1)(a), and the right to carry on any trade or business under 19(1)(g), using
the medium of internet is constitutionally protected”. This proclamation would
entail that any curtailment of internet access have to be reasonable and within
the boundaries laid down by Art. 19(2) and 19(6) of the Constitution. The court
would not only observe that while ensuring peace and tranquillity, but there
also is not an excessive burden on freedom of speech and expression.
2: Freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was not
violated due to the restrictions imposed.
The Court rejected this plea. It is unquestioned that freedom of the press is
one of the quintessential features of a democracy, which is very well protected
by the Constitution. The petitioner failed to produce any evidence that the
orders passed by the state-imposed restrictions on the freedom of press
including publication of newspaper and their distribution.
Therefore the court couldn't discover whether such a claim was legitimate or
not. Since then the petitioner has resumed publication. Hence the court held it
to be not violative and believed the government to be taking care of the freedom
of the press.
3: The imposition of restrictions under Section 144, CrPC were not valid.
The Government cannot claim exemption from producing all the orders passed under
Section 144, CrPC.
The Court held that the power cannot vanquish legitimate expression of opinion
or grievance or exercise of any democratic rights. This section can only be
imposed in case of an emergency and not for the prevention of instruction or
injury to any lawfully employed. Therefore mere disturbance in the law and order
of the state may not necessarily lead to a breach of public order. Only the
magistrate and the state has the right to decide whether there is a likelihood
of threat to public peace. No person should be deprived of his liberty unless it
is dangerous and therefore repetition of the imposition of such orders would be
a clear abuse of power.
The court held that the state had to publish the order placing restrictions
before the court. It had cited difficulty in determining the legality of the
restriction imposed when the state refused to produce the order before the
court. The state must provide all relevant information necessary which is
needed. As per the interpretation of Article 19, freedom of speech and
expression includes right to information. The state has no right to pass such
law based on mere apprehension of danger. Hence, this cannot be a valid ground
or reason to refuse to produce the order.
4: Government's action of prohibiting internet access is not valid.
The Court highlighted that it had to consider both procedural and substantive
elements to determine the Constitutional legality of the internet shutdown.
The procedural mechanism has two components. First, there is a contractual
component between Internet Service Providers and the Government. Second, there
is the statutory component as mentioned under the Information Technology Act,
2000, the Code of Criminal Procedure, 1973 and the Telegraph Act.
The Suspension Rules under Section 7 of the Telegraph Act were passed in 2017
and allowed the restriction of internet contingent on certain safeguards.
Addition to this Section 5(2) of the Telegraph Act permitted suspension orders
only in case of a public emergency or for the safety of the public. Although to
pass such an order determination of the existence of emergency is required.
The suspension rules did not explicitly mention the maximum duration of a
suspension order. Hence, it is up to the Review Committee to determine the
duration and to make sure it does not exceed beyond such period which is
The court held that the government cannot contend any exception for providing
any order before the court which is passed under Section 144 of the CrPC. The
court declared the internet to be essential in today's life and thereby freedom
of speech and expression and freedom to practice any profession, occupation or
trade on the internet is a part of fundamental right under Part III of the
Furthermore, the court held that the prohibition for access to the internet will
only be valid in certain circumstances only otherwise it'll cease to exist. Such
impositions affect the Fundamental Rights of the people, therefore the court
ordered to follow the test of Proportionality to satisfy that no kind of
violation of natural justice exists.
The court did not remove the restrictions on internet and movement of the
citizens, however, the judgement deliver widened the interpretation of freedom
of speech and expression by including the right to access the internet which was
an essential part of the Article which could only be restricted in the situation
of national security.
The judgement did not provide immediate relief to the citizens affected due to
these orders but laid down principles for future suspension orders and their
procedure to prevent the state for abuse of power. This is a solution for
The Internet has become a tool for spreading a piece of important news or is
necessary for a two-way conversation. It has become an integral part of the life
of people. In a situation such as today's, the circumstances of coronavirus
lockdown, wherein because of internet connection students all over the world can
have access to education even after staying at home, people around the world can
work and make money for their living.
In a situation such as this internet plays a crucial role, which now has become
a right in the interpretation of Right of Freedom and expression under Part III
of the Indian Constitution.
- Anuradha Bhasin V. Union Of India - 2020 SCC ONline SC 25