Case Title: Anuradha Bhasin V. Union of India and ors
The Supreme Court's ruling on the lockdown in Kashmir has significant ramifications, including the statement that freedom of speech and expression as well as freedom of online trade and commerce are protected rights under Articles 19(1)(a) and 19(1)(g) of Constitution, respectively.
Justices B R Gavai, Surya Kant, and N V Ramana made up the court's ruling panel.
“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 the internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in accordance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality (para 152(b)).”
It's also crucial to note that the Court has made it clear that the ruling is limited to the use of the internet to exercise freedom of speech, expression as well as trade and commerce. The Court has also said that it has not expressed any position on the right to access the internet.
Anuradha Bhasin, executive editor of the daily Kashmir Times, and Rajya Sabha member Ghulam Nabi Azad both filed petitions challenging restrictions on the internet, media, and other restrictions imposed in the Kashmir area after the special status of J&K was revoked on August 5. According to reports, the internet blackout in Kashmir, which has lasted more than 150 days, is the longest one to ever occur in a democracy. The Court observed that the advancements in the field of technology have to be recognized.
"Non-recognition of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of the internet cannot be underestimated, as from morning to night we are encapsulated within cyberspace and our most basic activities are enabled by the use of the internet", observed the judgment authored by Justice Ramana.
The decision stated that the SC has acknowledged free speech as a basic right in a string of decisions and has recognised the freedom of speech and expression across a variety of media as technology has advanced. Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, Secretary, Ministry of Information & Broadcasting, Government of India, and other cases served as the foundation for this. In this context, the following was noted:
"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 the 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."
The J&K administration must reconsider the instructions to shut down the internet within a week, the court eventually ordered. The review should be conducted in accordance with the guidelines outlined in the ruling. The Court ruled that the legislation outlined in the ruling shall be implemented if new orders of the shutdown are deemed to be required.
The government should think about permitting specific websites, such as government websites, localized/limited e-banking facilities, healthcare services, and other vital services in such regions if it decides not to restore internet access to any particular locations. As was stated:
"In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e-banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately."