The Supreme Court court did not determine whether the Internet shutdown in Kashmir was justified, but only called for a review of the decision.
On shutting down the Internet
After five months of Internet shutdown in Kashmir, the Supreme Court on Friday (January 10) ruled that the right to access the Internet is a fundamental right protected under the Constitution.
This is the first time that the Supreme Court has read the right to access the Internet as part of Article 19 (1) (a) of the Constitution — the right to freedom of speech and expression, and Article 19 (1) (g) — the right to practise any profession, trade or occupation.
Previously, the Kerala High Court in September 2019 had declared access to the Internet as a fundamental right.
Although the Supreme Court has ruled that indefinitely shutting down the Internet would be unlawful, it stopped short from declaring the shutdown in Jammu and Kashmir, the longest Internet shutdown in India, as illegal.
The three-judge Bench has instead asked the government to review the orders that mandated the Internet shutdown.
Despite a direction for review, the government can issue fresh orders for an Internet shutdown.
The court also said that even a temporary shutdown of the Internet cannot be “arbitrary”, and will be subject to judicial review. The court laid out that like any curbs on free speech, restricting Internet access must also be proportional — as laid out under Article 19 (2) of the Constitution.
Again, the court did not determine whether the Internet shutdown in Kashmir was justified, but only called for a review of the decision.
On Section 144 CrPC
On the restriction of movement by imposing Section 144 of the Code of Criminal Procedure, 1973, the court said that such restrictive orders cannot be “a tool to repress legitimate expressions of citizens”.
Rejecting the arguments of the Jammu and Kashmir government that the court cannot examine all the orders issued under Section 144, the court directed the state to publish every such order so that citizens affected by them can challenge the orders in courts.
This directive sets the ground for challenging orders of preventive detention, the imposition of Section 144, and the shutdown of the Internet in Kashmir.
The court also held that magistrates issuing such orders under Section 144 must “apply their minds”, and must balance security and liberty of citizens. The court said that repetitive orders without application of mind would violate fundamental rights.