On January 10, 2020, the Supreme Court declared that freedom of speech and expression and freedom to practice any profession over the medium of the internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The case was Anuradha Bhasin vs Union of India & Ors. Writ Petition (Civil).
The decision was lauded all over the media and, tellingly, by people on the internet as a landmark judgment and a victory for freedom of speech.
Even though the judgement has been inaccurately reported as upholding the right to internet as a fundamental right, it carries a semblance of hope, if not concrete remedies.
Inter alia the court held that:
(i) Suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. That suspension can be utilised for a temporary duration only.
(ii) Any order suspending internet under the suspension rules is subject to judicial review.
Of rights and remedies
The court limited itself from declaring the right to access the internet as a fundamental right, as the petitioners had not asked for this.
The focus of the judgment was instead upon the body of case laws which have paved the way for upholding fundamental rights utilising the medium of the internet.
While the judgment does an admirable job of summarising the position developed over time in relation to print and digital media, it however proceeded with trepidation over the tool under the present curtailment. The judgement tight-roped between decisions which have exalted the need to uphold guarantees under Article 19(1)(a) and 19 (1)(g) and the ample danger it saw in the direct line between access to internet and extremism and terror.
The direct line was drawn based upon the history of the region itself, which was also submitted by the Central government as the basis for all assumptions about latent terror tendencies.
One also notes, with caution, that viewpoints of American experts were forwarded to argue that traditional warfare methods were inadequate to meet cyber-terror threats in the context of a “war on terror”.
The caution, here, lies in noting that the literature relied on in the judgment may well have required revision given that these were published a decade ago, which in the context of technological responses can be termed as aged. Additionally, this cautionary note comes with the hindsight that the United States had indeed adopted non-traditional methods to deal with cyber-threats after such concerns were raised.