Anuradha Bhasin v. Union of India, the Supreme Court of India held that 'Accessing the medium of internet under Article 19 of the constitution is a fundamental right, subject to some restrictions and said freedom of press is a valuable and sacred right'
Indian constitution makes the right to freedom of speech and expression a fundamental right for all citizens. It has been listed in Article 19 (1)(a) of the Constitution. The Supreme Court has on many occasions expanded the scope of the right to freedom of speech and expression.
The latest expansion makes the constitutional provision keep pace with innovation of technology. Internet is the primary source of information to millions of Indian citizens. A non-citizen can avail the same benefits but cannot claim it as her fundamental right.
EARLIER : The Kerala High Court on September 19, 2019 too held ‘Right to Internet Access’ as a fundamental right. The court said access to internet becomes the part of right to education as well as right to privacy under Article 21 of the Constitution of India.
BACKGROUND : Section 144 CrPC (prohibitory orders) cannot be used indefinitely to suppress freedom of speech and expression and difference of opinion in Jammu and Kashmir after abrogation of Article 370. Section144 enables district magistrate to impose restrictions on movement and assembly in public.
KEY TAKEAWAYS UNDER THE JUDGMENT :
1. EXPRESSION THROUGH INTERNET : A bench of justices NV Ramana, R Subhash Reddy and BR Gavai said that civil liberties and concerns of national security must be balanced, while laying down new protocols for authorities to follow when they need to suspend internet and telecommunication services or restrict people’s movement.
“Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution”
Freedom of speech and expression and freedom to carry on trade or profession through internet is a fundamental right under Article 19 of the Constitution and any order suspending internet under Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 (Suspension Rules) can be only for a temporary duration and not for an indefinite period.
TRACING THE HISTORY :
The development of the jurisprudence in protecting the medium for expression can be traced to the case of Indian Express v. Union of India, (1985) 1 SCC 641, wherein this Court had declared that the freedom of print medium is covered under the freedom of speech and expression.
In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410, it was held that the right of citizens to exhibit films on Doordarshan, subject to the terms and conditions to be imposed by the Doordarshan, is a part of the fundamental right of freedom of expression guaranteed under Article 19(1)(a), which can be curtailed only under circumstances set out under Article 19(2).
REASONABLE RESTRICTION : The right provided under Article 19(1) has certain exceptions, which empowers the State to impose reasonable restrictions in appropriate cases. The ingredients of Article 19(2) of the Constitution are that:
a) The action must be sanctioned by law;
b) The proposed action must be a reasonable restriction;
c) Such restriction must be in furtherance of interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
2. DOCTRINE OF PROPORTIONALITY : The court makes clear that the constitutional validity of an Internet shutdown has to be adjudicated in accordance with the doctrine of “proportionality”. As the name suggests, the doctrine of proportionality requires the court to ask whether a violation of rights is “proportionate” to the goal or the purpose that the State wants to achieve.
In the case of K. S. Puttaswamy, this Court observed: “…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...”
MEANING : CPIO v Subhash Chandra Aggarwal, (2019), the meaning of proportionality was explained as: “…It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question…”
REASON FOR THIS PRINCIPLE : Under the principle, the court will see that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”.
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