What are Rights to Freedoms? How has the Right to Freedom of Speech and Expression fared in India? (part 2)

Free Speech & Expression - Internet Freedom

Case: Shreya Singhal v Union of India (2015) was a landmark decision by the Supreme Court in the age of the internet. The Court struck down Section 66A of the Information Technology Act 2000 as unconstitutional, as it criminalised offensive online content in vague, undefined terms, was overbroad, and thus prone to misuse by the State. This judgment extended constitutional protection for freedom of speech to online content, in the same way as to offline speech and expression. Any restrictions on online content must only be subject to the “reasonable restrictions” enumerated in Article 19(2).

Case: Jammu and Kashmir government imposed indefinite internet shutdowns in the State from August 2019 onwards, in the aftermath of the abrogation of Article 370 of the Constitution. Anticipating public unrest and terrorist violence, the State government shut down mobile phone, landline connectivity and internet services. Additional restrictions were imposed under Section 144 of the Indian Penal Code on freedom of movement and public assembly. This not only affected Article 19(1)(a), but also Article 19(1)(b) (Freedom to assemble peaceably and without arms) and Article 19(1)(g) (Freedom to carry on trade or business).

In Anuradha Bhasin v Union of India (2020), a case filed by a journalist, the Supreme Court ruled that -

• indefinite suspension of internet services should satisfy the tests of necessity and proportionality. There should be a legitimate aim, an exploration of suitable alternatives, and the adoption of the least restrictive measure. Considering proportionality, indefinite internet shutdown was impermissible.
• Expressing one’s views or conducting one’s business through the internet are protected under Articles 19(1)(a) and 19(1)(g) respectively, and can be restricted only on grounds recognised under Articles 19(2) and 19(6).

[Note: Fundamental Rights under Article 19(1)(g) - right to carry on trade or business, etc. - can be restricted in “public interest”, through requirements of professional and technical qualifications and by creating government monopolies which exclude private enterprise.]

• Orders issued under Section 144 of the Criminal Procedure Code (Cr. P.C.) and Telecom Suspension Rules should be made available to the public to know the reasons, unless there is a “specific ground of privilege” or “countervailing public interest”. Section 144 cannot be used to suppress legitimate expression and assembly and is subject to judicial scrutiny.

[Note: Fundamental Right under Article 19(1)(b) - right to assemble peaceably and without arms - can be restricted under Article 19(3), only for sovereignty and integrity of the nation or public order. Section 144 of Cr. P.C. (new Section 163 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023) allows District Magistrates to ban gatherings of four or more people if there is a threat to public peace or danger to life.]

Critique of the Anuradha Bhasin judgement:

This is an instance of “judicial abdication” by the apex Court, as it failed to hold the Jammu and Kashmir government accountable for Fundamental Rights violations and for allowing the government to frustrate the Court’s right to Judicial Review. The Supreme Court -

• failed to hold the 158-day suspension of internet services as unconstitutional or order its restoration even while holding that such suspension was impermissible;
• failed to hold a retrospective judicial review of the actions of the State government and told the State to hold a prospective review;
• set problematic precedents by holding that reasonable restrictions under Article 19(2) can extend to complete prohibition of speech in certain circumstances. Governments could abuse this interpretation since internet shutdowns are often indiscriminate and over-broad in nature;
• characterised the violation of press freedom as just a “chilling effect” without acknowledging that disabling of telecom services and physically stopping journalists from entering certain areas were a clear violation of press freedom.