SC orders J&K govt to review internet shutdown orders

The Supreme Court on Friday directed the Jammu and Kashmir administration to review forthwith all orders suspending internet services saying it enjoyed constitutional protection as a tool for freedom of speech and expression and to carry on any profession.

Maintaining that the internet is integral to the fundamental right, a three-judge bench, presided over by Justice N V Ramana, said suspending the communication service without duration and indefinitely would also be violative of the Telecom Rules.

"We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g)," the bench said.

The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality, the court added.

The top court also said the government must prioritise actions to ensure adequate safety and security for the people.

Shutting down the internet completely was a drastic measure, it said.

The top court passed its judgement on a batch of petitions filed by senior Congress leader Ghulam Nabi Azad and Kashmir Times Executive editor Anuradha Bhasin.

"Internet is a tool for freedom of speech and expression. It cannot be restricted for being an integral part of Article 19(1)(a) of the Constitution," the bench said.

"All orders issued under Section 144 CrPC, putting in restrictions, must be published to enable people to challenge it," the bench said.

The state should take a proactive approach to produce all orders issued under Section 144 CrPC unless countervailing circumstances, it added.

"We have to strike a balance between liberty and security, both are always at loggerheads," the bench said.

Even an emergency does not shield the actions of the government. Section 144 of CrPC cannot restrict expression of opinion unless supported with sufficient materials, it said.

"The power under Section 144, CrPC being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an
“emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed," the court said.