21st December 2019 : The Hindu Editorials Notes: Mains Sure Shot
Question – Comment on Right to freedom of speech and expression and Internet shutdown.(250 words)
Context – The frequent instances of internet shutdown.
The right to access internet:
Relevant Internet shutting down law and authorities:
- Home Departments in the states are mostly the authorities that enforce shutdowns, drawing powers from The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. The decisions are reviewed by a state government review committee. The central government also has powers under this law, but has not used it.
- Other relevant laws are Section 144 of the Code of Criminal Procedure, 1973 and The Indian Telegraph Act, 1885.
- Section 144 has enabled many of the shutdowns in the recent past, especially until the time the telecom suspension Rules came into force in 2017. Section 144 CrPC gives the District Magistrate, Sub-Divisional Magistrate or any other executive magistrate empowered by the state government the power to issue orders to “maintain public tranquility”.
- Less frequently used is The Indian Telegraph Act, 1885, whose Section 5(2) allows central and state governments to prevent the transmission of messaging during a “public emergency or in the interest of public safety”, or “in the interests of the sovereignty and integrity of India, the security of the state”, etc.
Recent cases of internet shutdown:
- In case of protest in Assam , North east and other parts of the country against the citizenship amendment Act 2019.
- In apprehension of violence before Ayodhya Verdict , Rajasthan and UP saw the largest number of suspensions .
- 134th day of the continuing shutdown in Jammu and Kashmir, which began on August 5, the day the erstwhile state was stripped of its special status under Article 370 of the Constitution.
- UT Jammu and Kashmir , Rajasthan and UP saw the largest number of shutdown.
- Anuradha Bhasin and Ghulam Nabi Azad both have challenged the internet blockade in the valley on the premise that internet ban have very devastating consequences on the daily life of a person.
- Shutting down of internet impinges upon the right to freedom of speech and expression preserved in Article 19(1)(a) of the Constitution. This guarantee has instrumental value and its has a consequence of promoting informed polity.
- Denial of access to the web is also directly impinges upon the liberties of the press.
- A denial of the right to health care caused by people’s inability, among other things, to access government schemes such as Ayushman Bharat, and a withdrawal of education to students at different levels, occasioned by the seemingly interminable closure of institutions.
- Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 requires the executive, among other things, to provide a reasoned order when it directs the withdrawal of the Internet. That such a direction exists, in and of itself, must make it clear that access to the web cannot be shut out through the issuance of Secretive instructions. In a democracy these orders need to be made published.
- Government arguments:
- Judges must grant the state substantial leeway in matters of national security; that once the executive believes on the basis of “some material” that freedom ought to be restricted, the court must not review the validity of such measures, even when those actions involve a wholesale blocking of the Internet.
- There is no obligation on it to disclose the orders through which the restrictions have been imposed
- Sakal Papers (1961), to hold that no policy of the state can so much as regulate the circulation of a newspaper, as any such programme will directly impinge on the right to freedom of expression.
- The law demands is this: that any measure taken by the state in restricting a fundamental right is necessary and proportionate to the goal that it seeks to achieve. To determine whether the limitations imposed in Kashmir meet this test, the court need not, as the state warns, perform the role of a super-executive. It merely needs to scrutinise whether a wide-ranging ban on the Internet on an entire populace is justifiable, when, even according to the government, it is only a “minuscule minority” who are likely to commit violence.
Impact of Internet shutdown:
- It is against the constitutional promise of civil liberties and equality.
- A conservative estimation released by the Kashmir Chamber of Commerce and Industry show that the State economy has suffered a loss of no less than ₹15,000 crore since the dilution of Article 370.
- a report in The Hindu (‘Ground Zero’ page, “In a land without Internet”, December 7, 2019) shows that, with jobs already hard to come by, there has been a staggering 80% loss of employment among start-ups in Kashmir that rely on the Internet.
- The judiciary needs to determine whether the executive has provided a reasoned order when it directs an Internet ban.