10/01/2020 10:44 AM IST | Updated 10/01/2020 1:03 PM IST

Kashmir: SC Admits Internet Access Fundamental Right, But Doesn't Lift Ban, Yet

The SC verdict did not lift any order but said all restrictive orders, including the internet shutdown, in Jammu and Kashmir have to be published and reviewed within a week.

Kashmiri journalists hold placards and protest against 100 days of internet blockade in the region in Srinagar, Kashmir, Nov. 12, 2019.

In a major ruling on Friday, the Supreme Court said that the right to access internet was a fundamental right under Article 19 of the Indian Constitution.

Restrictions on internet have to follow principles of proportionality under Article 19(2), the court said.

The top court asked the Jammu and Kashmir administration to publish and review all restrictive orders, including the internet shutdown, in the region within a week. It also asked the administration to restore Internet services in all institutions providing essential services like hospitals and educational centres, PTI reported.

The top court was delivering its verdict on a batch of pleas, including that of Kashmir Times editor Anuradha Bhasin, challenging the restrictions imposed in Jammu and Kashmir following the abrogation of provisions of Article 370. The pleas challenged the clampdown on communication and internet services in the region.

“This freedom can only be restricted after relevant factors are considered and only if there are no other options,” Justice Ramana said, according to LiveLaw.

 As he read out the judgment, Justice Ramana said the court would not delve into the political intent behind the prohibitory orders.

The internet shutdown in Kashmir over five months is the longest in a democratic country. David Kaye, the U.N. Special Rapporteur on Freedom of Opinion and Expression, had called the shutdown “unprecendented” and said that the communication blackout following the abrogation of Article 370 was a ‘disproportionate’ interference with the rights of Kashmiris.

A bench of Justice NV Ramana, Justice R Subhash Reddy and Justice B R Gavai had reserved the judgement on November 27 last year.

On internet shutdowns

On Friday, the court said that indefinite suspension of the internet was not permissible and was a violation of Telecom Rules.

According to the judgment, any order that had been passed to restrict or suspend internet services would be subject to judicial scrutiny, LiveLaw reported.

“All orders suspending such services must be published so that those affected can challenge if necessary. All orders are to be also put in the public domain which can then be challenged in a court of law. Internet suspension without any particular duration and indefinitely is a violation of telecom rules,” the SC bench observed, Indian Express quoted.

As the court called the right to access internet a part of a citizen’s right to freedom of expression, it said that the freedom could only be restricted after relevant factors were considered and only if it was unavoidable.

On Section 144

“Power under Section 144 CrPC cannot be used as a curb on legitimate expression of democratic rights,” the court said, Bar&Bench reported.

Section 144 is a remedial and preventive measure. It can be used only where there is a likelihood of incitement of violence and danger to public safety, Ananathakrishnan G reported for Indian Express.

“It can’t be used as a tool to oppress difference of opinion,” the judges said, according to NDTV.

The SC directed the government to produce all orders through which Section 144 is invoked.

On November 21, the Centre had justified restrictions imposed in Jammu and Kashmir after the abrogation of provisions of Article 370 and said that due to the preventive steps taken, neither a single life was lost nor a single bullet fired.

The Centre had referred to violence in the Kashmir Valley and claimed terrorists were being pushed through from across the border, local militants and separatist organisation had held the civilians captive in the region as reasons to take these “preventive steps” to secure the lives of citizens.

Provisions of Article 370, which gave special status to the erstwhile state of J&K, were abrogated by the Centre on August 5 last year.