The Matrix (1999), is an iconic movie at many levels, but stands out for building on the growing importance of the internet and its integration into human life. Among its various iconic scenes, the one of Neo being asked to decide on whether to take "the blue pill or red pill" by Morpheus (who clearly did not give due disclosure) has rightly become a metaphor for any decision-making. It becomes more prescient in relation to the question that arose in the last quarter of 2019 on the issue of access to the internet which finally made its way before the Supreme Court of India arising from a highly politically charged measure that strangely had nothing to do with either technology or the internet.
On 5th August, 2019, the special status of Jammu and Kashmir granted under Article 370 of the Constitution of India was revoked by a Presidential Order. Due to the sensitive nature of the Presidential Order, as also the prevailing law and order situation in Jammu and Kashmir, internet services in the region were suspended prior to promulgation of the Presidential Order.
Several writ petitions were filed before the Supreme Court of India ("Supreme Court"), calling for judicial review of, inter alia, the internet shutdown in Jammu and Kashmir. The issues raised for consideration of the Court, included (but were not limited to)whether freedom of speech and expression and freedom to practice 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 government action prohibiting internet access is valid; and whether the freedom of press was violated due to such restrictions. The Supreme Court disposed of these writ petitions vide its judgement dated 10.01.2020 in the case of Anuradha Bhasin v. Union of India.1
This article summarises the arguments put forward and the decision of the Supreme Court on the issue of internet shutdown infringing upon individuals' freedom to practice any profession, occupation, trade or business.
Supreme Court's Discussion on Freedom of Trade and Commerce & the Doctrine of Proportionality
The Supreme Court in its judgment acknowledged that, "...in today's world the internet stands as the most utilized and accessible medium for exchange of information...", and even the most basic activities are enabled by the use of the internet.2 Further, it went on to acknowledge that the internet is also an important tool for trade and commerce, and therefore, "...freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6),"3.
The Government is entitled to restrict the freedoms guaranteed under Part III of the Constitution. However, such restrictions are limited in nature. With regard to the fundamental right under Article 19(1)(g) to carry on trade or business, Article 19(6) of the Constitution provides the grounds under which right may be restricted. Article 19(6) makes it clear that any restrictions on the right under Article 19(1)(g) has to be a "reasonable restriction". It also states that laws relating to professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business and carrying on of any trade, business, industry or service, by the State, or by a corporation owned or controlled by the State, to the exclusion, complete or partial, of citizens or otherwise, do not constitute restrictions on Article 19(1)(g).The Supreme Court raised and answered the question of law about the extent of power the State has to restrict rights under Article 19(6).4
The Supreme Court observed that fundamental rights are principles and any restrictions on the same would need to adhere to the "principle of proportionality", which concept has been recognized by the Supreme Court time and again. It referred to a catena of cases that have previously dealt with the principle of proportionality. Finally , relying on its recent judgment in K. S. Puttaswamy v. Union of India5, the Supreme Court held that, "...Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law..."6 Further, it held that the standard of proportionality is to be applied to ensure that a right is not restricted to an extent greater than necessary to fulfil the legitimate interest of the countervailing interest in question.7
Dealing specifically with the freedom of occupation, trade and business, the Supreme Court has previously held that the phrase "reasonable restriction" under Article 19(6) connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.8 Further, the Supreme Court has also held that , when "...considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession", it would need to "attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen's freedom ... the possibility of achieving the object by imposing a less drastic restraint ... or that a less drastic restriction may ensure the object intended to be achieved."9 Both these principles were reiterated by the Court in the Internet Rights Judgement.
After a detailed analysis, the Supreme Court summarized the requirements relevant to the doctrine of proportionality with respect to measures curtailing fundamental rights10:
- The possible goal of such a measure intended at imposing restrictions must be determined.
- The goal of the measure must be legitimate.
- Authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal.
- Appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure.
- Only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances.
- Lastly, since the order has serious implications on the fundamental rights of the affected parties, the same should be supported by sufficient material and should be amenable to judicial review.
The Supreme Court further stated that the concept of proportionality requires a restriction to be tailored in accordance with (i) territorial extent of restriction; (ii) stage of emergency; (iii) nature of urgency; (iv) duration of restrictive measure; (v) nature of restriction.11 In light of the doctrine of proportionality, the Supreme Court concluded that complete blocking/prohibition on internet services perpetually cannot be accepted.12
Framework Governing Suspension of Internet Access
Having dealt with the substantive law concerning right to internet and the restrictions that may be imposed on it, the Supreme Court assessed the procedure adopted for suspension of internet. Notably, it observed that there are two aspects to the procedural mechanism contemplated for restriction on the internet, viz. the contractual relationship between the Internet Service Provider and the government; and statutory restrictions contemplated under the Information Technology Act, 2000, the Criminal Procedure Code, 1973 and the Telegraph Act, 1885. The Court, in light of the issues raised before it, restricted its analysis to the procedure contemplated under section 5 of the Telegraph Act, commonly known as the wire-tapping clause. Section 5 of the Telegraph Act reads as follows,
"5. Power for Government to take possession of licensed telegraphs and to order interception of messages.
- On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do, take temporary possession (for so long as the public emergency exists or the interest of the public safety requires the taking of such action) of any telegraph established, maintained or worked by any person licensed under this Act.
- On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order:
Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section."
Section 7 of the Telegraph Act empowers the Central Government to make rules to implement the restrictions contemplated in section 5. Exercising its power under this provision, the Central Government has framed the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 ("Suspension Rules"). It was under these Suspension Rules that an order to suspend internet in Jammu and Kashmir had been passed by the Government.
Analysing the parent act and the rules framed under it, the Court observed that a pre-requisite for an order to be passed under the Suspension Rules is occurrence of a public emergency or for it to be in the interest of public safety.13 After dwelling on what may constitute an "emergency", the Supreme Court concluded that it needs to be determined on a case to case basis.14 More importantly, relating the concept of emergency with that of proportionality, the Supreme Court held that the authorities are required to triangulate the necessity of imposition of such restrictions after satisfying the proportionality requirement.15
The Supreme Court concluded that the Suspension Rules fell short in meeting the basic principles of natural justice in so far as they do not have a provision for publication of notifications passed under these Rules.16 Thus, the Supreme Court mandated17 that orders passed under the Suspension Rules be made freely available so that persons aggrieved by such orders may exercise their constitutional right to challenge them either before a High Court under Article 226 or before other appropriate forum.18
Further, the Court observed that even though the Suspension Rules contemplate a "temporary" imposition of restriction, there is no indication of maximum duration for which a suspension order can be in operation. The Supreme Court held that deficiency of time limit needs to be cured till the Suspension Rules are amended.19 In the interim, the Supreme Court directed the Review Committee20 constituted under the Suspension Rules to conduct periodic review within 7 working days of previous review. The Supreme Court mandated that such a review must look into – (a) whether the restrictions are in compliance with requirements under section 5(2) of the Telegraph Act and (b) if orders are still proportionate. The Supreme Court concluded that the suspension of internet must not be allowed to extend beyond the time that it is necessary.21
Observations and Conclusion
This Supreme Court's judgement in the Internet Rights case effectively consolidates various facets of existing jurisprudence on the doctrine of proportionality, which the central and state governments will have to keep in mind while imposing restrictions on access to internet. In the immediate context of the situation in Kashmir, it did not revoke the existing restrictions, but simply asked the Government to review its own decision to suspend internet services, and directed it to allow access to government websites, localised/ limited e-banking facilities, hospital services and other essential services.
In Matrix terms therefore, the Internet Rights Judgement is akin to the Oracle, in as much as it compiles and states the prevailing wisdom philosophically, but does not provide any real assistance.
This judgment also has to be seen in the context of various other policy developments. The Central Government is in the process of publishing its National Cyber Security Policy, 2020. This policy is set to replace the existing National Cyber Security Policy, 2013. The Call for Comments released by the Ministry of Electronics and Information Technology22 also acknowledges that technologies, platforms, threats, services and aspirations have changed tremendously since 2013. It is clear that the 2020 Policy will have to keep these rapid changes in technology, as well as the principles laid down by the Supreme Court, in view while suggesting a regulatory framework for cyber security in India.
*Ameyavikrama and Meghna are Associates at Clarus Law Associates, New Delhi.
1 Anuradha Bhasin v. Union of India and Ors. W.P. (C) 1301 of 2019 dated 10.01.2020 ("Internet Rights Judgement")
2 Para 22, 24, Internet Rights Judgement
3 Para 27-28, Internet Rights Judgement
4 Para 46, Internet Rights Judgement
5 K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1. The Supreme Court also referred to the subsequent judgement of K.S. Puttaswamy (Retired) v. Union of India, (2019) 1 SCC 1 which extended the right to privacy to the Aadhar.
7 CPIO v Subhash Chandra Aggarwal, (2019) SCC OnLine SC 1459
8 Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118
9 Mohammed Faruk v. State of Madhya Pradesh, (1969) 1 SCC 853
10 Para 70, Internet Rights Judgement
11 Para 72, Internet Rights Judgement
12 Para 75, Internet Rights Judgement
13 Para 92, Internet Rights Judgment
14 Para 93, Internet Rights Judgment
15 Para 94, Internet Rights Judgment
16 Para 96, Internet Rights Judgment
17 Para 98, Internet Rights Judgment
18 Para 97, Internet Rights Judgment
19 Para 100, Internet Rights Judgment
20 Rule 2(5), Suspension Rules contemplates a Review Committee formed by the Central or State Government as the case may be, to review the suspension directions passed under S. 5, Telegraph Act
21 Para 100, Internet Rights Judgement