Access to Public Information, Content Regulation / Censorship, Digital Rights, Internet Shutdowns, National Security
SERAP v. Federal Republic of Nigeria
Closed Mixed Outcome
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The Supreme Court of India ordered the constitution of a Special Committee to review the restriction of internet mobile service to 2G in the Union Territory of Jammu and Kashmir. The petitions were brought by the Foundation for Media Professionals, a lawyer, Soayib Qureshi and the Private Schools Association of Jammu and Kashmir, seeking the restoration of 4G internet in the region following the communication blackout imposed by the central government in August 2019. The Court recognised that the rights to freedom of speech and expression, health, education and business must be balanced against the prevailing national security concerns. Applying the minimum standards for internet restrictions set out in Anuradha Bhasin v. Union of India, WP (C) No. 1031/2019, the Court held that the impugned order did not “provide any reasons” for the blanket enforcement of the shutdown across all districts. However, while the petition would “merit consideration” in “normal circumstances”, the particular “compelling circumstances of cross border terrorism” prevented the Court from finding a constitutional violation. [para. 19] Rather, the Court directed the constitution of a Special Committee, led by the Indian Home Secretary, to evaluate the necessity of the internet restriction in Jammu and Kashmir.
The three writ petitions filed before the Supreme Court of India concerned the restriction of mobile internet speed by the Union Territory of Jammu and Kashmir. The territory is part of the larger region of Kashmir, which has been disputed between India, Pakistan, and China since the partition of the subcontinent in 1947. Jammu and Kashmir was granted a special autonomous status under Article 370 of India’s constitution, including the right to its own constitution and the authority to make its own laws on all matters excluding defence, communications and foreign affairs.
On August 5, 2019, a presidential decree revoked the special status accorded to the Kashmir region under Article 370 of the Indian constitution. The following day, landline connections, internet and mobile coverage in the region were all suspended. The communications blackout was part of a series of measures that accompanied the shift in status of the region, including the arrival of thousands of additional troops, curfews, and the house arrest of political leaders. On January 10, 2020, the Indian Supreme Court ruled in Anuradha Bhasin v. Union of India WP (C) No. 1031/2019 that, when enforcing internet shutdowns, the government must prove necessity and impose a temporal limit, which it had failed to do. The government was ordered by the court to review its suspension orders and subsequently limited the communications restrictions to 2G mobile connection.
The three petitioners sought the restoration of 4G internet service and the quashing of the impugned order restricting internet in the union territory of Jammu and Kashmir. The joint petitions centred on the claim that the suspension of internet services, particularly during the covid-19 pandemic and national lockdown, was a violation of the right to health, education, freedom of speech, freedom of business and access to justice. The submission further argued that the Respondent state had failed to abide by the minimum standards for restricting internet access set out by the Supreme Court in Anuradha Basin and the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (Telecom Suspension Rules).
As the representative of the Union Territory of Jammu and Kashmir, the Attorney General primarily argued that the judiciary should not interfere in matters of national security which lay in the Legislature’s domain of ‘policy making’ (reliance on Zamora, (1916) 2 AC 77 (PC)). The Respondent state further submitted that the “security of the nation should triumph against the fundamental rights of the citizens” and that “continuing insurgency in the region, the spreading of fake news to incite violence, etc.” required an ongoing restriction of internet services to the region. [para. 7] It was further argued that as no restriction was imposed over fixed line internet, all information relating to Covid-19 could be received through internet as well other forms of print and electronic media, radio broadcasts as well as social media. [para. 8]
After oral hearings via video conferencing, the Supreme Court of India published their decision on May 11, 2020.
The three Justices Ramana, Reddy and Gavai delivered a per curiam opinion.
The main issue before the Court was whether the government of the Union Territory of Jammu and Kashmir was justified in restricting mobile internet access across the region.
The three petitioners submitted the mobile internet restrictions imposed by the government excessively impact the citizens’ fundamental rights. The petition noted that internet access was particularly important in order to access medical services and information during the covid-19 pandemic. The first petitioner, the Foundation for Media Professionals, submitted the testimony of journalists, doctors, teachers, students, lawyers and business people from the Union Territory to demonstrate the importance of 4G internet service. The second petitioner, advocate Soayib Qureshi, further argued that the internet speed restrictions violate the Indian Supreme Court’s January 2020 decision, Anuradha Basin v. Union of India. Specifically, the petitioner argued that the government had failed to abide by the safeguards set out in the Court’s decision for the government to follow when imposing an internet shutdown. The Respondent further failed to constitute a Review Committee, as required by the Temporary Suspension of Telecom Services (Public Emergency of Public Safety) Rules, 2017. The third petitioner, the Private Schools Association Jammu and Kashmir, submitted that the internet restrictions prevent students in the region from accessing online learning materials and preparing for exams. Finally, the petitioners claimed that the Respondent failed to provide a sufficient nexus between internet speed and national security. Rather, as noted by the petitioners, the introduction of internet to the region coincided with a reduction in the number of terrorist incidents. [para. 6]
The legal arguments of the Respondent state primarily focused on the necessity of an internet shutdown in defence of national security. The Attorney General argued that the larger public interest in targeting insurgency and the spread of fake news should be prioritised by the Court against the rights of citizens. To demonstrate the “volatile” situation in the Union Territory of Jammu and Kashmir, the Respondent noted that over 108 terrorist incidents have taken place in between August of 2019 and April of 2020. As such, internet restrictions were enforced in order to “reduce the misuse of internet”. [para. 9]. The Respondent additionally submitted that the authorities had “strictly complied with the directions passed by this Court on the previous occasion”, referring to Anuradha Bhasin v. Union of India. [para. 8] In consideration of the right to health during the covid-19 pandemic, the Respondent argued that information is widely accessible online on social media platforms and government websites via 2G internet, as well as radio channels, satellite TV and local cable networks. With regard to the right to education of students in the region, the Respondent noted that lessons are broadcast on “16 DD channels at a national level, and through the radio”, along with mail delivery textbooks. [para. 8]
The Supreme Court primarily recognised the necessity of balancing national security concerns against the fundamental rights of citizens. Before conducting the analysis, the Court addressed the steps taken by the government following the earlier judgment of the Supreme Court in Anuradha Bhasin v. Union of India. The Court acknowledged that the government had expanded internet from a total shutdown to allowing all websites via broadband and finally mobile services with 2G. [para. 20] The Court subsequently set out a list of increasing insurgent activities in Kashmir, including incidents of “cyber terrorism” pointed out by the Respondent. [para. 13] In this context, the Court held that better internet access, although “desirable and convenient” was outweighed by the threat from those “trying to infiltrate the borders and destabilise the integrity of the nation.” [para. 14] In consideration of this threat, the Court referenced the Anuradha Bhasin judgment, in which the Supreme Court held that “Modern terrorism heavily relies on the internet.” [para. 22]
In considering the proportionality of the restriction, the court observed that a blanket order was passed for the entire Union Territory of Jammu and Kashmir regions, rather than for specified at risk areas. The Court noted that “the degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.” While orders issued by the Union Territory of Jammu & Kashmir were for a limited period, they failed to provide any reason to support that such a restriction was necessary to be imposed in all districts of Jammu and Kashmir. [para.16] Again following Anuradha Bhasin, the Court noted restrictions should only be imposed where it is deemed absolutely necessary. [para. 17-18]
Finally, the Supreme Court recognised the failure of the government to abide by the Supreme Court’s decision in Anuradha Bhasin, from which every order passed under Rule 2(2) of the Telecom Suspension Rules restricting internet access must be placed before a Review Committee. Such a Committee should oversee the “procedural and substantive safeguards” of such a restriction. [para. 23] The Court held that, considering the regional and national implications of the particular circumstances, a Review Committee should be constituted comprising of national, as well as State, Secretaries. The Court recommended that the Special Committee should “examine the appropriateness of the alternative suggested by the Petitioners”, regarding limiting the geographic spread of the restriction. [para. 24]
Despite recognising the failures of the Indian government to abide by the previous ruling of the Supreme Court when implementing internet restrictions, the Court did not find that the impugned order was unconstitutional. Rather, in consideration of the impugned circumstances regarding terrorist activity in the region, the Court ordered the constitution of a Special Committee to oversee the extent and duration of the restriction.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court attempts to balance the national security concerns with citizen’s right to access internet and the need for such uninterrupted access to the internet during the Covid-19 pandemic. While the Court observes that the executive order does not meet the proportionality test, the justices do not determine that the order is unconstitutional. Without rendering a conclusive opinion on the validity of the restrictions imposed by applying the test of ‘legitimacy’, ‘reasonableness’ and ‘proportionality’, the Court passed the decision on to the Special Committee. Further, the Special Committee constituted by the Court only comprises of executive members, those responsible for imposing restrictions on the internet in J&K.
In June 2020, the Petitioners alleged that the government has failed to constitute the Special Committee as directed by the Court and filed a contempt petition before the Supreme Court. The Supreme Court upon hearing the contempt petition on June 16, 2020, granted a week’s time to the Union of India and Union Territory administration to file a response to the contempt petition.
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Case significance refers to how influential the case is and how its significance changes over time.
The decision was given by a three-judge bench of the Indian Supreme Court. Therefore, it establishes a binding precedent on all Courts within, unless overruled by a larger bench of the Supreme Court.
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