Guest Post: An Executive Court and a Judicial Committee: The Supreme Court’s Decisions on the Internet Restrictions in Kashmir

[This is a guest post by Chintan Chandrachud, on the Supreme Court’s decision in the 4G Internet case. Mihir’s analysis of the judgment on this blog can be found here.]


On 11 May, the Supreme Court issued its decision in a case challenging the restriction on mobile internet speed in Jammu and Kashmir. The Court neither decided whether the restriction was unconstitutional nor issued a remedy. Instead, it referred the matter to a three member special committee. The Supreme Court’s decision on 11 May was a sequel to its decision of 10 January 2020. At 149 pages collectively, the Court’s decisions are relatively brief by its standards. However, they are far more revealing about the role of the Court than many other decisions of greater length and complexity.

On 4 August 2019, mobile phone networks, internet connectivity and landlines were disabled in large parts of Jammu and Kashmir, in anticipation of the constitutional changes that would follow. (As is well known, these “virtual” restrictions – frequently described as the “communications lockdown” – were also accompanied by restrictions on physical movement, with several political leaders being placed under house arrest.) The communications lockdown was imposed under the Temporary Suspension of Telecom Services Rules (“Suspension Rules”), which enable the central or state government to suspend telecom services when there is a public emergency or a risk to public safety. The Suspension Rules included a mechanism for solitary review (rather than periodic review) of suspension orders. A committee of three bureaucrats would meet once, within five days of the relevant suspension order, to determine if it was appropriate.

In its decision of 10 January, the Court addressed the question of whether the suspension orders that had been passed since 4 August 2019 – which were the pieces of the puzzle constituting the communications lockdown – were unconstitutional. In arriving at its decision, the Court prescribed a series of important principles. Even though the Suspension Rules did not specifically require their publication, the Court held that suspension orders should be published going forward. It replaced the solitary review mechanism with a periodic review mechanism – in which the review committee would be required to meet every seven days to assess the appropriateness of suspension orders. The Court also concluded that blanket suspension orders (either in terms of the duration of time for which they applied or in terms of their geographic application) would not be constitutionally permissible. However, the Supreme Court failed to decide the most important issue – whether the suspension orders were constitutionally invalid and should be set aside. This was nothing short of an abdication of responsibility. It is no coincidence that the right that guarantees direct access to the Supreme Court when fundamental rights are violated refers to “remedies for enforcement of rights”. The Court may have recognised the rights at stake, but failed to enforce them and award a remedy.

Following the Court’s decision, a review committee of three state-level bureaucrats met periodically to consider fresh suspension orders that gradually narrowed the scope of the lockdown. Fixed-line internet connectivity was restored (first for essential services and hospitals, later for software companies, and ultimately more widely). Access to social media websites was gradually reinstated. However, elements of the thirteen suspension orders passed between the Supreme Court’s decisions of January and May seemed vulnerable to constitutional scrutiny. For example, between 14 January and 4 March, the suspension orders imposed a “white-listing” regime, under which only specifically white-listed websites could be accessed through the internet. This resulted in some arbitrary inclusions and exclusions, and an abandonment of the basic principles of net neutrality. In addition, mobile internet has continued to remain restricted to 2G speeds, well below the 4G speeds that would otherwise be available.

The restriction on speed of mobile internet was addressed in the Supreme Court’s judgment of 11 May. It is easy to typecast this as a narrow restriction (slow internet versus fast internet). Examined more closely, however, this is a question of access rather than speed. Imagine using applications designed for 2020 on a mobile internet connection that is in healthy competition with dial-up internet of the 1990s. The constitutional challenge was framed with a focus on the impact of the restriction. It was argued that the restriction hindered doctors and the general public from accessing information on COVID-19, and students from accessing educational material and literature when classes in physical classrooms were not taking place. The government argued that the restriction was in the interests of national security, and was directed towards reducing misuse of the internet by terrorists and militants.

In what was virtually an action replay of its decision in January, the Supreme Court refused to determine the constitutional validity of the restriction. Even if the decision of 10 January were to be justified on the basis that the Court established a new periodic review mechanism which would consider the appropriateness of suspension orders going forward, that rationale was now no longer available. The restriction that was challenged was a product of the new review mechanism, and the Court was tasked with determining if it was unconstitutional. Instead of doing so, the Court set up yet another review committee – this time consisting of a combination of national and state level bureaucrats – to “examine the contentions” of the parties and determine whether the restriction is appropriate. To be sure, the Court did not ask the committee to report back to it with its analysis. The petitions have been disposed of, and it is the committee that will be deciding the propriety of the restriction. To state the obvious, the Court has delegated its sacrosanct obligation of determining the constitutionality of executive action to the executive.

Equally disconcerting as the Supreme Court’s delegation of authority, however, is its assumption of responsibility. The Court opens its judgments of 10 January and 11 May with the surprising observation that it is the Court’s role to strike a “balance” between “liberty and security”. It is easy to understand why any Court would veer towards security over liberty when the question is framed in this way. However, this framing is at odds with the Court’s role as an independent decision-maker. Neither proportionality nor reasonableness review requires the Court to be saddled with the responsibility of “striking a balance” between liberty and security. That is plainly the job of a democratically elected government. The Court’s role is simply to determine, applying the principles articulated in its 10 January decision, whether the balance that has already been struck by the government is constitutionally permissible.

If the Supreme Court is once again called upon to determine the constitutionality of the restrictions on communication, it should not only take back the adjudicative mantle, but also hand over the executive one.

The Supreme Court’s 4G Internet Order: Evasion by Abnegation

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


Evasion by Abnegation: A new facet of the Doctrine of Judicial Evasion?

This blog has often spoken of judicial evasion. However, the Supreme Court today demonstrated that the discussion thus far had missed out a very important strand of the doctrine of judicial evasion. Whether it be electoral bonds or federalism, judicial evasion till now appeared to be “Not Now” version, i.e. not deciding issues until it was too late for the outcome to matter. The Supreme Court today shows us in its order disposing of FMP v UT of J&K and anr. (“Order”) that an even more potent version is the “Not Us” version: i.e. not simply Evasion by Adjournment, but rather, Evasion by Abnegation. In a writ petition pertaining to the validity of restrictions on 4G in Jammu & Kashmir, the Court held:

A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored…

 We, therefore, find it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions…

 The Special Committee is directed to examine the contentions of, and the material placed herein by, the Petitioners as well as the Respondents. The aforesaid Committee must also examine the appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over certain geographical areas and advise the Respondent No. 1 regarding the same, in terms of our earlier directions.

In substance, what the Court appears to have held is that the contentions of the Petitioner were to be adjudicated not by the Court, but by the “Special Committee” constituted by the Court, consisting of the Home Secretary and Secretary, Communications (of the Central Government) and the Chief Secretary of the UT of Jammu & Kashmir. With great respect, it is submitted that it is difficult to reconcile the Order of the Supreme Court with the language of Article 32 of the Constitution of India. Article 32 says:

The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed…

 The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

This Article has not at all been adverted to by the Supreme Court. It is respectfully submitted that given the existence of the fundamental right to judicial remedies, the most powerful court in the world is duty-bound to consider exercising its jurisdiction under Article 32. It is not competent for the Court to hold that some other body – especially one consisting of Secretaries of the very Departments whose orders are in question – should consider the contentions of the Petitioner and the “appropriateness of the alternatives”.

It was incumbent on the Court to itself consider the relevant materials; and adjudicate – one way or the other – on the validity of the challenged measures. In doing so, the Court would of course have had to consider how much deference to give to executive assessments in matters of national security and what the standards of judicial review should be. It would then have been possible – whatever the Court ultimately decided – to consider and analyse the reasoning of the Court. However, “deference” cannot amount to “abnegation”; and the tenor of the Court’s order indicates that the Court was not simply “deferring” to an executive assessment of the facts, but was effectively ceding jurisdiction to decide issues of constitutional law. In State of West Bengal v Committee for the Protection of Democratic Rights, a Constitution Bench of the Supreme Court held:

In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution…

With great respect, the Order does not take into account the significance of this position.

The Zamora and Deference

In the Order, what the Court has essentially held is that due to “compelling circumstances of cross-border terrorism”, the Supreme Court must refuse to exercise jurisdiction under Article 32. In substance, then, the fundamental right under Article 32 (which is not simply a right to have some remedy, but a right to a judicial remedy before the Supreme Court) is a dead letter, in view of “compelling circumstances of cross-border terrorism”. Given that the right under Article 32 cannot be suspended “except as otherwise provided for by this Constitution”, the Order demonstrates that the following statement in a previous post on this blog was entirely appropriate:

… there is no proclamation of Emergency, but the Court – on its own initiative – acts as if there exists an Emergency, and its orders reflect judicial standards that are uniquely applicable to the Emergency regime. And this, in my submission, is the most appropriate conceptual framework within which to analyse the Court’s conduct on the Kashmir petitions over the last two months – a framework that is now fortified by the State’s first formal statement to come on the court record.

Before the Supreme Court, the Attorney-General placed reliance on the advice of the Privy Council in The Zamora, where Lord Parker stated:

Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public.

This statement was made in the context of deference on factual determinations of the executive. The Court noted:

Their Lordships are of opinion that the judge ought, as a rule, to treat the statement on oath of the proper officer of the Crown to the effect that the vessel or goods which it is desired to requisition are urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security, as conclusive of the fact

In its Order in FMP, what the Supreme Court has done is not simply a deference to a factual determination of the executive. Indeed, it appears that the “factual” materials relied on by the Court (to which, at best, the above paragraph may apply) were in the form of a “Note” submitted by the Respondents after the matter was reserved for orders. This “Note” was – according to the Petitioner’s responsive submission – not supported by any materials on affidavit. But leaving that aside, what the Note indicates is that “militancy has significantly increased in the recent times…” and gives instances of encounters and attacks which took place in the Kashmir valley in April and May 2020. However, as the Petitioner’s responsive submission pointed out, this was much after the impugned restrictions in any case: how do these events – which took place after the restrictions were in place – demonstrate the need for having the restrictions in the first place? The “Note” also purports to rely on a report in The Print, about the Pakistani Army’s “Green Book” which (it is stated) calls for “information warfare”. (The Note only annexed the first print page of the news report, but the full report in The Print is available here.) The statement regarding information warfare appears in an essay by a Peshawar-based journalist in the Green Book. Without needing to go into any factual dispute, even assuming that the Peshawar-based journalist’s suggestions were indeed acted upon by the Pakistani establishment (and indeed, it would be surprising if “information warfare” is not on the table at all in these times), the legal question is: does this factual basis justify the restrictions? The Court makes no attempt whatsoever to engage with this legal question. [Further, another relatively minor point may perhaps be that orders must be defended on the basis of the reasons recorded at the time the orders are passed and not on the basis of subsequent reasoning: orders are not like old wine becoming better as they grow older.]

In any case, The Zamora was a case involving the wartime requisition of copper (the copper admittedly being contraband of war) from a ship headed purportedly to a neutral port, but claimed by the Government to be heading to an enemy port. The issue turned on whether this requisition was urgently required for national security reasons or not. It is noteworthy that in the same case, it was also pointed out:

 If the Court is to decide judicially… it cannot, even in doubtful cases, take its directions from the Crown, which is a party to the proceedings… It must itself determine what the law is according to the best of its ability, and its view, with whatever hesitation it be arrived at, must prevail over any executive order…

And on the facts, in The Zamora, the question was decided against the government because there was no evidence forthcoming about the purpose of the requisition. As the House of Lords clarified in Council of Civil Service Unions about Lord Parker’s statement about national security:

These words were no abdication of the judicial function, but were an indication of the evidence required by the court. In fact the evidence adduced by the Crown was not sufficient, and the court ruled that the Crown had no right to requisition. The Crown’s claim was rejected “because the judge had before him no satisfactory evidence that such a right was exercisable” (p. 108). The Prize Court, therefore, treated the question as one of fact for its determination and indicated the evidence needed to establish the fact. The true significance of Lord Parker’s dictum is simply that the court is in no position to substitute its opinion for the opinion of those responsible for national security.

The Zamora consequently does not at all support the stand that it is open to the Court to effectively refuse to hear a petition alleging violation of fundamental rights on account of the perceived demands of national security. Other than The Zamora (and of course, the decision in Anuradha Bhasin), the Court cites no authority whatsoever for the proposition that “national security” is a complete answer to a claim of violation of fundamental rights. The Court might as well have relied on the majority in Liversidge v Anderson. It might have expressly clarified for once and for all that however deep ADM Jabalpur is buried, Lord Atkin’s dissent (“In this country, amid the clash of arms, the laws are not silent…”) was not applicable in India.

The constitution of the Special Committee; and a (forlorn?) hope

Further, the basis for the direction to constitute a Special Committee of three secretary-level officers is also not entirely clear. The question raised before the Court would require findings on questions such as (a) the appropriate standard of review, and (b) the validity on the restrictions on the fundamental rights in question. The Court itself appears to accept that “the submissions of the Petitioners, in normal circumstances, merit consideration.” These are, very clearly, issues requiring the application of a judicial mind. The Supreme Court has stated in Madras Bar Association v Union of India (per Nariman J., concurring):

the decision by superior courts of record of questions of law and the binding effect of such decisions are implicit in the constitutional scheme of things. It is obvious that it is emphatically the province of the superior judiciary to answer substantial questions of law not only for the case at hand but also in order to guide subordinate courts and tribunals in future. That this is the core of the judicial function as outlined by the constitutional provisions set out above… All substantial questions of law have under our constitutional scheme to be decided by the superior courts and the superior courts alone

If the executive had stated that violations of fundamental rights will be dealt with by a committee of three Secretary-level officers, it is unthinkable that such a mechanism would be constitutionally valid. Perhaps the only way to save such a mechanism (although even that is doubtful) would be for the decision of the Committee itself to be open to question and the Supreme Court then undertaking a proper judicial review of such decision. The Supreme Court’s Order grants no such liberty expressly permitting the Petitioner’s to come back to the Supreme Court; and the entire tenor of the Order with its focus of “national security” and “compelling circumstances” appears to suggest that whatever is held by the Committee will be effectively conclusive. One of course hopes that that is not the case; that today’s Order ultimately is seen as ‘only’ Evasion by Adjournment  (for a future Bench to re-consider after the Special Committee decision) and not the cementing of a culture of Evasion by Abnegation.

Conclusion

To conclude, it may be worth noting one further aspect. The Supreme Court’s admission in the Order that the submissions of the Petitioner merited consideration “in normal circumstances”, but its ultimate holding that those submissions cannot be considered by the Supreme Court in view of “compelling circumstances of cross-border terrorism”, is particularly striking. In A v Secretary of State for the Home Department, Lord Hoffman (himself not particularly averse to giving a long leash to the executive in matters of national security) observed:

 The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve…

One is forced to wonder: have we reached a situation where we run the risk that this quote becomes an accurate summary of the present?

The Kashmir Internet Ban: “Restoration”, White-Listing, and Proportionality

On January 10th – as we discussed on this blog – the Supreme Court handed down its judgment on the internet shut-down in Kashmir (it bears repeating that this is the longest continuing internet shut-down in any democratic country). The Supreme Court’s judgment had two parts: a statement of the law and an application of the law to the facts of the case. On the first issue, the Supreme Court held that accessing information through the internet was a fundamental right, and the principle of proportionality applied to adjudicating the constitutional validity of internet shut-downs (which, inter alia, requires the government to adopt the ‘least restrictive’ method when it comes to restricting rights). On the second issue, the Court directed the “Review Committee” (a government body), constituted under the Telecom Suspension Rules of 2017, to review the situation on a weekly basis.

In response to the judgment of the Court, the Jammu & Kashmir government has passed three orders purporting to partially relax the internet shut-down. In this post, I will argue that a reading of the government’s orders reveals that (a) they are in breach of the legal principles laid down in the Supreme Court’s judgment, and deserve to be challenged; and (b) these orders reveal that the State’s own case before the Supreme Court was based on flawed premises – something that has important consequences for challenges to internet shut-downs, going forward.

At the outset, it is important to note that this is a critique of the government’s orders on their own terms; the larger points – that a five-month long internet shut-down is inherently disproportionate, must be lifted at the earliest, and that the Supreme Court’s judgment unfortunately did not grant relief to the Kashmiris – remains.

The Orders

On 14th January – four days after the Supreme Court’s judgment – the J&K government passed an order stating that cross-border terrorist elements were using the internet to communicate and spread propaganda, which could cause large-scale violence. The government directed, inter alia, for provisions of broadband services to institutions providing essential services, 2G mobile connectivity in certain districts, and the installation of internet firewalls and a set of “white-listed websites” that could be accessed by internet users. Access to social media was specifically prohibited. Subsequently, on 18th January,  second order was passed – this time in exercise of review powers under the Telecom Suspension Rules. This order stated that there was had been no adverse impact after the partial restoration, but reiterated that the internet could be used for incitement, “rumour mongering”, and by anti-national elements. It directed restoration of Voice and SMS facilities on pre-paid SIMS, and extended 2G internet to a few more districts. In addition, it provided a specific list of 153 “white-listed” websites, from Blue Dart to Zomato to Amazon Prime – which could be accessed.

In accordance with the Supreme Court’s judgment, this had to be reviewed on a weekly basis. This, consequently, led to the third order, passed yesterday, which reiterated the twin points of “no adverse impact” and “apprehension of misuse.” This order basically expanded the set of white-listed websites to 301 (adding news websites such as Scroll and The Wire), continued the prohibition on social media, and clarified that “white-listing” was a continuous process.

White-Listing and Proportionality 

The three orders make it clear that the government – in conjunction with Internet Service Providers – has the technological capacity to allow selective access to the Internet (contrary to what the Government’s lawyers argued in court; see this analysis by the Internet Freedom Foundation). Independent of the overall constitutional arguments (indicated above), a very simple conclusion follows from this: that internet shut-downs are inherently disproportionate, because a less restrictive alternative exists at all times. If the government’s entire justification for internet shut-downs is that the internet is being used for “rumour mongering” and “incitement to violence”, it is clear that blocking access to all of the internet – a large swathe of which cannot possibly be used in that fashion – fails the ‘least restrictive alternative’ prong of the proportionality standard. In future, therefore, internet shut-downs should be immediately struck down by Courts without any ado: the government itself has given us evidence that they are disproportionate.

This is not, however, a defence of white-listing: in fact, the consequences of the government’s orders go further, as they demonstrate that there exist alternatives that are less restrictive even than white-listing. The government can – it is clear – block access to specific websites (the repeated references to social media show that this is so). This would be a method of ‘black-listing’ – where access to the internet is allowed except for specified websites.

The conceptual difference between white-listing and black-listing can be summed up in very simple terms. In white-listing, the default is no access to the internet, except what the government allows. In black-listing, the default is access to the internet, except what the government prohibits. The first is a case of ‘everything is prohibited, unless specifically allowed.’ The second is a case of ‘everything is allowed, unless specifically prohibited.’

This is where the Supreme Court’s other finding – that accessing information through the internet is a fundamental right – becomes crucial. Because if a constitutional democracy means anything, it means that the default situation is – and must be – the existence of a fundamental right, and it is the limitations that must be the exceptions. White-listing reverses that fundamental proposition – in the words of K.G. Kannabiran, it makes the restrictions “fundamental”, instead of the right. Black-listing, on the other hand, not only preserves the fundamental character of the right, but also – by providing a clear category of what is forbidden (instead of an amorphous “everything”), allows citizens to challenge that before a court (another fundamental aspect of the rule of law).

This also makes intuitive sense. For example, if an individual wants to read science fiction on Strange Horizons, why should there be a need to special permission from the government, in the absence of which, the website cannot be accessed? On the other hand, if the government has credible information that Strange Horizons is inciting people to violence, then it can block access to the website – and, if necessary, will be required to justify it in Court. White-listing, on the other hand, is impossible to effectively challenge, because it brings us right back into the domain of generic statements about the “internet” being used to incite violence and spread propaganda – the kinds of arguments that the government made in the Internet Shut-Down case.

White-listing, therefore, is no effective “restoration”, as it continues to leave the fundamental right to communicate over the internet entirely at the Government’s discretion: exactly the Emergency-style argument that the Government’s lawyers tried to push before the Supreme Court, and were roundly rebuffed.

Conclusion 

As indicated at the beginning of the post, this is not an argument that justifies white-listing (or even blacklisting). The continuing ban on social media on vague and specious grounds of “rumour mongering” remains disproportionate (as pointed out many times, there is actually no evidence showing internet shut-downs combat “rumour-mongering”, and indeed, evidence points the other way). The constitutional case against internet restrictions remains, and will continue to be made – before courts, and elsewhere.

What this post shows, however, is that the J&K’s actions after the Supreme Court’s judgment are effectively subverting the Court’s findings, and also demonstrate severe internal inconsistencies between what the government claims and what it actually does. The Supreme Court made it clear that access to information through the internet was a fundamental right, and restrictions would have to meet the test of proportionality. White-listing reverses that principle, and effectively makes restricting internet access a fundamental right of the government, with the burden upon the people to establish why they should be allowed to access selected parts of the internet. This reversal of the citizen-State relationship is unconstitutional, and will hopefully be recognised as such.


(Disclaimer: The author was one of the lawyers representing the Petitioners in the internet shut-down challenge.)

 

The Devil’s in the (future) Detail: The Supreme Court’s Internet shut-down Judgment

Previously on this blog, we have discussed in some detail the litigation challenging the five-month-long internet shut-down in the Kashmir Valley. Today, a three-judge bench of the Supreme Court handed down its judgment in the challenge. While there was no effective relief in the judgment – the Court did not order a restoration of internet services in the valley, as it did not return a finding on the issue (see below) – it nonetheless reiterated certain important constitutional principles. While it is unfortunate, therefore, that the longest internet shut-down in a democratic country continues (at least for the foreseeable future), in this post, I will set out what the judgment actually did do, and how it provides a platform for future challenges to internet shut-downs as well as to the imposition of Section 144 of the Code of Criminal Procedure.

What the State Lost 

To understand the judgment, it is important to understand two bizarre claims advanced by the State at various points of the hearing. The State (i) refused to produce the orders that it had passed under Section 144 CrPC and the 2017 Telecom Suspension Rules, and which were the legal bases of the fundamental rights restrictions in the Valley; (ii) cited terrorism in Kashmir to argue that it was exempted from following the proportionality standard while restricting fundamental rights, and that, in the interests of national security, the Court ought not to intervene.

In essence, therefore, what the State – and its lawyers – were asking for was a complete carte blanche with respect to the operations in Kashmir. If the orders restricting fundamental rights did not need to be produced, there was no effective way to challenge them; and if the Court could not intervene because “terrorism”, then there was no effective forum where to challenge them. In other words, the State – and its lawyers – asked the Court to effectively hold that Kashmir was in a state of permanent Emergency, where fundamental rights stood suspended and at the mercy of the State, even though there had been no declaration of an Emergency at any point. The dangers of such an argument are obvious; as I’ve argued before, what the State wanted was a permanent normalisation of the Emergency regime, where the invocation of “national security” would grant an automatic judicial immunity from justifying the constitutionality of fundamental rights restrictions.

On both counts, however, the State’s arguments were comprehensively rejected. On the first issue, the Court made it clear that the orders providing legal cover to the imposition of Section 144 CrPC and the internet shut-down had to be made public, so that citizens could know – and, if they chose – challenge the bases on which their fundamental rights were being restricted. If the State wanted to withhold any part of such orders because of national security concerns, it would have to justify that, on a case to case basis.

On the second count, the Supreme Court reiterated that, at all times, restrictions upon fundamental rights had to be consistent with the proportionality standard. In particular, as part of the proportionality standard, the State had to select the least intrusive measure to achieve its legitimate goals. As the Court noted in paragraph 70:

However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. Lastly, since the order has serious implications on the fundamental rights of the affected parties, the same should be supported by sufficient material and should be amenable to judicial review.

And as it went on to note in paragraph 71:

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.

 

Applying this standard to the specificity of internet shut-downs, the Court made four further observations. First, that the right to use the internet as a medium for free speech and expression and for trade and commerce, was protected under Article 19(1)(a) of the Constitution; secondly, that Article 19(2) allowed for the restriction of “abrasive statement(s) with imminent threat … if the same impinges upon the sovereignty and integrity of India…”; thirdly, that a perpetual internet shut-down would fail the test of proportionality; and fourthly, that the State’s argument that it couldn’t selectively block websites because of a lack of technology could not be accepted, as “[if] a contention is accepted, then the Government would have.”

Taking these four observations together, it is evident that the ongoing internet shut-down in Kashmir completely fails constitutional standards, as the government did not even attempt to justify it on grounds of proportionality, or that it was only targeting statements carrying an “imminent threat.” The Court went on to note that all of this required that when orders were being passed under the Telecom Suspension Rules to shut dow the internet, those orders would have to explicitly reflect how – in the specific case – the State action was proportionate.

While the reiteration of the proportionality standard in the context of internet shut-downs was a reinforcement of existing law, the Court also applied the same standard to Section 144 orders – which marks an incremental advance in the law. Up until now, the judgments governing the imposition of S. 144 were the old decisions of Babulal Parate and Madhu Limaye, whose language remained vague enough to be taken advantage of by unscrupulous State actors. Today the Supreme Court made it clear, however, that Section 144 orders would also have to abide by the proportionality standard (paragraph 126, and that that would have to be reflected in the text of the orders themselves. The Court also observed that in the normal course of things, S. 144 orders would have to be limited to particular areas or issues – thus casting severe doubt on the constitutionality of wide-ranging long-running 144 orders such as the one recently imposed in all of Bangalore, or the continuing order in Ahmedabad.

What the Petitioners Didn’t Win

Despite these findings, however, the Supreme Court did not rule on the validity of the internet shut-down or the imposition of S. 144 throughout the Valley. Its reason for that was somewhat curious: it held that because all of the internet shut-down orders had not been placed before it, it could not (yet) engage in judicial review. This is curious, because the onus of producing these orders undoubtedly lay on the State – indeed, the Court expressly directed it to do so in the operative part of its judgment. Furthermore, once the Court had held that the right to access information through the internet was protected by Article 19(1)(a), and that restrictions had to be proportionate, surely then the default situation was that the right would have to prevail over the restriction; in other words, until the government actually published the relevant orders with all the reasons (as required by the judgment), the internet ought to have been restored.

Instead, the Court directed that the Review Committee under the Telecom Suspension Rules would have to review the shut-down orders on a weekly basis, and that all the orders so far would have to be reviewed. Presumably, then, once this is done – and once the orders are published – a fresh challenge could be mounted on the basis of the principles laid out in this judgment (which, as I have indicated above, strongly suggest that the Kashmir shut-down is – and had always been – illegal).

Consequently, to the extent that the basis of the Court’s decision to not review the internet shut-down orders was that the State had not produced the orders in question (for five months), the consequence should have been that until the State – and its lawyers – decided to follow the law and the Constitution once again, fundamental rights could not continue to be restricted. That, however, seems like it will be a battle for another day. In the meantime, it is important to recall that in the wake of the CAA/NPR/NRC protests, the indiscriminate use of Section 144 and of internet shut-downs has been back in vogue, and there are now pending challenges in several High Courts. Today’s judgment sets out the principles on the bases of which these can be adjudicated: and the principles are that these orders restricting fundamental rights are subject to strong judicial review, that the State – and its lawyers – cannot get away by singing paeans to national security, that each order must be published, made public, and explicitly set out why the measure is proportionate, and that lastly, the Court shall – and must – examine whether least restrictive measures have been used, keeping in mind the importance of the internet to fundamental rights. These are sound procedural – and substantive bases – to move forward.


[Disclaimer: the author was one of the lawyers representing the petitioners.]

 

Guest Post: The Kashmir Internet Ban – What’s at Stake

[This is a guest post by Suhrith Parthasarathy.]


A three-judge bench of the Supreme Court has heard oral arguments and reserved its judgment in Anuradha Bhasin v. Union of India and Ghulam Nabi Azad v. Union of India, in which the petitioners have impugned, among other things, the ongoing shutdown of the Internet in the Kashmir Valley. The arguments raised in these petitions touch upon questions critical to the functioning of India’s democracy. This post is an effort at expounding some of the issues at stake in the case.

Facts

Sometime on August 4, on the eve of the Union government’s decision to issue presidential orders divesting the state of Jammu and Kashmir of its autonomy, a complete blockade on information and communication services was placed in the region. Since then, a few of these restrictions have been lifted, but access to the Internet in the Kashmir Valley remains elusive. As the Petitioners have pointed out, while landlines and post-paid mobile phone voice calls are now functioning, only a miniscule proportion of the population in the region have access to these services. Post-paid mobile phone SMSes remain blocked and so too pre-paid mobile phone voice calls and prepaid mobile phone SMSes. Messaging services, as we’re only too aware now, are critical to carrying out various forms of economic transactions. They are, in many ways, an essential service. Even according to the government’s own response, out of a total of nearly 60 lakh mobile phones, only 20 lakh phones are working and even on those phones SMSes remain wholly blocked. What is more, access to the Internet in the Kashmir Valley continues to be prohibited, despite the critical role that the web plays today in various kinds of economic, social and educational activities.

These orders blocking communication services, Ms. Bhasin and Mr. Azad have argued, have had a damaging effect on a number of fundamental rights. In Ms. Bhasin’s case, the newspaper she edits, The Kashmir Times, could not be distributed on 5 August and went entirely unpublished between 6 August and 11 October. Today, owing to the absence of the Internet, and the barriers placed on journalists seeking to do their job, only a pruned version of the newspaper is published. Therefore, in Ms. Bhasin’s argument, the ban on communication services, in particular the restrictions placed on the Internet, have affected both her right to free speech and her newspaper’s right to freedom of the press.

The Leader of the Opposition in the Rajya Sabha, Mr. Azad, on the other hand, who was himself prohibited from visiting the Valley, until the Supreme Court intervened, has underlined various other impacts that the bans have had on people living in Jammu and Kashmir. For example, basic livelihood, he points out, has been deeply affected. Industries such as tourism, handicrafts, manufacture, construction, cultivation, agriculture and information technology have been brought to a state of cessation, with the economy in the region suffering losses running into the thousands of crores. Access to basic healthcare too, he argues, has been impeded, with people in the Valley unable to avail of the government’s Ayushman Bharat scheme. Over and above all this, the ban has meant that people in the Valley have been entirely cut out from the rest of India. Residents outside the state have been unable to speak to their families in Kashmir, leading, Mr. Azad says, to a great deal of mental stress and anxiety.

Issues and legal arguments

It’s simple enough to deduce the issues that arise in the case: (1) Does a denial of access to the Internet violate any fundamental right? And (2) can access to the Internet ever be blocked, and, if so, under what circumstances can such an action be validly enforced?

Access to the Internet

Perhaps the finest exposition of why access to the Internet is a fundamental right is contained in a recent judgment of the Kerala High Court in Faheema Sharin v. State of Kerala. There, the court recognised that access to the Internet is today essential, because it grants people an avenue not only to information but also to a host of other services. Although the web brings with it its own set of challenges there can be little doubt, as the court held, that it enhances individual freedom, in granting to people a liberty of choice, in determining what they want to read, see and hear, in determining what kind of information they wish to access, and, more than anything else, in limiting the government’s ability to control a person’s private self.

As the High Court held, the Internet has become so central today to our lives that it plays an instrumental role in the realisation of a number of constitutional guarantees. The court, in arriving at its conclusions, relied on a United Nations General Assembly Resolution which noted how access to information on the Internet “facilitates vast opportunities for affordable and inclusive education globally, thereby being an important tool to facilitate the promotion of the right to education.” Given the importance of education to the right to life and personal liberty under Article 21 and given how important the Internet was in fulfilling these promises, access to the web, the court held, ought to be considered in and of itself as a fundamental, inalienable right.

Apart from this the court also recognised, that the Internet constitutes not only a medium for speech but also promotes a gateway to information. A right to access the Internet, therefore, in the court’s opinion, has to be seen as an integral component of a citizen’s right to freedom of speech protected under Article 19(1)(a) and can only be restricted on the grounds enumerated in Article 19(2).

The Kerala High Court’s view that access to the Internet is a fundamental right is not only in keeping with global trend but is also consistent with India’s entrenched free speech jurisprudence. After all, as early as in 1961, the Supreme Court had in Sakal Papers v. Union of India, recognised the instrumental value of speech: that access to the news and the media’s role in facilitating the distribution of information and knowledge played a direct role in the promotion of democracy. That the Internet plays a significant part in ensuring the protection of the right to health, personal liberty and livelihood therefore ought to mean that accessing the web deserves to be considered as fundamental, as flowing out of the guarantees contained in Articles 14, 19 and 21, which, today, after the 9-judge bench’s judgment in Justice (Retd). KS Puttaswamy v. Union of India (Puttaswamy I) (2017) 10 SCC 1, together form a trident against arbitrariness.

Therefore, any blocking of the Internet would ex facie violate fundamental rights. As a result, to enforce a restriction on the Internet an action of the state must be predicated on compelling reasons and must necessarily be made in a constitutionally sustainable manner.

When can restrictions be made

It is today settled law, as is clear from a reading of the judgments of the Supreme Court in Puttaswamy I and Puttaswamy II (the Aadhaar judgment), that fundamental rights can only be limited by state actions that conform to the doctrine of proportionality. The test to determine what state actions are proportionate was laid down by a 5-judge bench of the Supreme Court in Modern Dental College v. State of MP. The court there relied on judgments of the Supreme Court of Israel and the Canadian Supreme Court to hold that the doctrine was inherent in Article 19 itself.

A limitation of a constitutional right will be constitutionally permissible if (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.

In Puttaswamy II, the Supreme Court reiterated this test when it held as follows:

The proportionality test which is stated in the aforesaid judgment, accepting Justice Barak’s conceptualisation, essentially takes the version which is used by the German Federal Constitutional Court and is also accepted by most theorists of proportionality. According to this test, a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must, secondly, be a suitable means of furthering this goal (suitability or rational connection stage); thirdly, there must not be any less restrictive but equally effective alternative (necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-holder (balancing stage).

 

The question therefore that the Supreme Court must now answer in Anuradha Bhasin and Ghulam Nabi Azad is whether the state actions imposing the communications ban in the Kashmir Valley meets this four-prong test or not. And given that there has been an ex facie violation of a fundamental right, the burden to establish that these conditions are, in fact, met in this case lies on the state. Here, the restrictions placed quite clearly impinge on the doctrine of proportionality for the following reasons:

  • The orders imposing the Internet shutdown have no force of law. Presently, orders shutting down the Internet are made under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (“Telecom Rules”). These Telecom Rules were framed through the power prescribed on the Union executive by Section 7 of the Indian Telegraph Act, 1885. The Telecom Rules require the Executive, among other things, to provide a reasoned order when it directs the withdrawal of the Internet. Here, however, the orders imposing the shutdown were not made public. They were only released to the court during the course of the hearings, and, that too, with tremendous reluctance. A perusal of those orders that were released, however, the petitioners have argued showcase a complete non-application of mind. To take just one example, an order containing the subject: “Shut down of broadband services” was issued to extend an order whose subject read “Shut down of Land Line services.” What is more, while it is the Home Secretary (Govt. of India) or the Home Secretary of the state government concerned who is the competent authority to issue orders of suspension of the Internet under the Telecom Rules, in this case, the petitioner contend, the orders were issued by the Inspector General of Police. But, more than anything else, the orders themselves were bald and devoid of any reasons despite the Telecom Rules’ express mandate that orders suspending the Internet be issued for explicitly spelled out reasons.
  • The orders issued suspending the Internet are not in furtherance of any legitimate state aim. The government’s case is that it apprehends that the Internet will be misused by “anti-national” elements and will lead to a deterioration of “law and order.” However, neither phrase invoked confirms to the requirements of Article 19(2) of the Constitution. The Supreme Court has repeatedly held (see: Superintendent Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia and In Re Ram Lila Maidan Incident) that the term “law and order” is not subsumed within “public order” which is the ground that Article 19(2) stipulates. In the latter case, the court held that: “the distinction between `public order’ and `law and order’ is a fine one, but nevertheless clear. A restriction imposed with `law and order’ in mind would be least intruding into the guaranteed freedom while `public order’ may qualify for a greater degree of restriction since public order is a matter of even greater social concern. Out of all expressions used in this regard, as discussed in the earlier part of this judgment, `security of the state’ is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of `public order’ and `law and order’. However stringent may these restrictions be, they must stand the test of `reasonability’. The State would have to satisfy the Court that the imposition of such restrictions is not only in the interest of the security of the State but is also within the framework of Articles 19(2) and 19(3) of the Constitution.” In this case, the orders imposing the restrictions on the Internet the orders reference “law and order” without showing us how preservation of “public order” legitimately required the restrictions as imposed. What is more, as the petitioners have contended, the term “anti-national” is simply undefinable and does not fall within any of the carefully delineated grounds stipulated in Article 19(2) of the Constitution.
  • The orders imposing the shutdown are not rationally connected to the fulfilment of the supposed purpose, that is the prevention of violence. While the state has repeatedly claimed that the Internet will be misused by miscreants and anti-national elements it has provided no actual evidence of such misuse being a real and genuine threat. Indeed, as the petitioners have shown, studies indicate the opposite, that a shutdown of the Internet leads to anxiety and unease and augment the risk of protests and demonstrations turning violent. Therefore, the state has simply failed to demonstrate the existence of a cogent and sensible nexus between the restrictions imposed and the purported aim behind the orders.
  • Finally, the orders also do not conform to the test of necessity, that there was a compelling need for these actions and that the purported objective could not have been achieved through less restrictive and less invasive means. When even according to the state’s own arguments it is only a minuscule minority that are likely to commit violence, and when a whopping majority of the populace represent no threat to public order it is difficult to conceive how a complete shutdown of the Internet can constitute a necessary and proper action. Indeed, as the petitioners have shown, the state has often, in the past, isolated persons prone to terrorising from others, based on their registered mobile phone numbers. What is more, the state could quite easily have also resorted to blocking certain websites alone if the intention was to prevent incitement of violence. That a wholesale blockade of the Internet has been in force for more than four months evinces the fact that the State hasn’t so much as made an effort at ensuring that it adopts the least restrictive means possible to ensure that violence isn’t perpetrated in the region.

Ultimately, therefore, the actions of the state in enforcing a host of communication barriers in the Kashmir Valley, in particular its decision to entirely restrict access to the Internet, constitute a collective punishment on the people of the region and violate, among other things, the fundamental rights guaranteed under Articles 19(1)(a) and 21 of the Constitution.

The Striking Down of Section 66A: How Indian Free Speech Jurisprudence Found its Soul Again

In the best piece of free speech news since 1960, the Supreme Court on Tuesday struck down Section 66A of the IT Act, that criminalised “grossly offensive”, “menacing” and “annoying or inconvenient” speech over the internet. There has been a substantial degree of commentary about the judgment over the last two days. In this post, I will attempt a detailed excavation of the many fascinating strands of the judgment, from the point of view of free speech doctrine.

Use of American First Amendment jurisprudence

A month ago, I wrote a rather exasperated post about a bizarre Delhi High Court decision allowing the police to pull down political posters from the walls of private property, on the ground that “Delhites have short fuses”, and that political posters could therefore be a threat to public order.  In particular, when American free speech jurisprudence was cited before Justice Endlaw, he refused to consider those cases, on the ground that while the American First Amendment is “absolute” (“Congress shall make no law… abridging… the freedom of speech”), Article 19(2) is subject to reasonable restrictions. This cavalier dismissal highlights the highly opportunistic manner in which the Indian judiciary has engaged with American First Amendment law over the years. On occasions when it helps to buttress a point, judges have shown no compunctions in quoting the grand, eloquent pronouncements of the American judiciary on the freedom of speech; but of course, American First Amendment law has historically been far more speech-protective than its Indian counterpart. Consequently, when judges wishing to uphold far-reaching restrictions upon the freedom of speech are faced with contrary American cases, instead of engaging with the reasoning and demonstrating why it is invalid or inapplicable, they invariable invoke the “First Amendment is an absolute!” trope, and save themselves the trouble of having to consider contrary reasoning.

As I’ve tried to argue before, a refusal to engage with judicially trained minds grappling with very similar issues achieves nothing but stifling exposure to a range of rigorously thought-through and developed viewpoints, and harms the overall quality of reasoning. More importantly, though, the argument that the First Amendment is an absolute, and 19(2) contains reasonable restrictions, is a canard. The First Amendment is not absolute. No American judge, apart from Hugo Black, and possibly William Douglas, has held it to be. The First Amendment permits regulation of incitement to imminent lawless action, obscenity, fighting words, true threats, blackmail, copyright infringement, insider trading, consumer fraud and commercial speech. This was clearly understood by the framers. In the Constituent Assembly Debates, Ambedkar himself observed:

“It is wrong to say that fundamental rights in America are absolute. The difference between the position under the American Constitution and theDraft Constitution is one of form and not of substance. That the fundamental rights in America are not absolute rights is beyond dispute. In support of every exception to the fundamental rights set out in the Draft Constitution one can refer to at least one judgment of the United States Supreme Court.”

He then specifically went on to cite an American judgment on restrictions upon free speech – Gitlow vs New York.

In Paragraphs 14 to 19, Justice Nariman clinically demolishes the aforementioned canard. Citing Chaplinsky vs New Hampshire, the classic American judgment affirming that the First Amendment is not absolute, he correctly points out that the American Supreme Court has never given literal effect to the “make no law” phrase. He then correctly notes that the crucial difference between the American and Indian positions is that while in the United States, a compelling public interest must be demonstrated in order to regulate speech, in India, a restriction must be covered by the eight themes specified in Article 19(2). In other words, there could be occasions when the Indian Constitution protects more speech than the American! In any event, subject to this rider, Justice Nariman notes:

“Viewed from the above perspective, American judgments have great persuasive value on the content of freedom of speech and expression and the tests laid down for its infringement.”

And this is exactly as it should be. There is much to disagree with in American free speech law. But what is undeniable is that over a hundred years, American judges have crafted a deep, thoughtful and complex set of principles for understanding the purposes of the freedom of speech in a constitutional democracy. We might reject their principles completely, but we need to engage with them.

Public interest cannot be a ground for restricting speech

In specifying that under the Constitution, speech can be restricted only under one of the eight listed grounds under Article 19(2), Justice Nariman states twice that “public interest” is not one of the grounds, and so cannot be invoked to justify a speech restriction. In paragraph 21, he notes:

“Under our constitutional scheme, as stated earlier, it is not open to the State to curtail freedom of speech to promote the general public interest.”

Immediately after, he cites Sakal Papers vs Union of India in support of this proposition.

This might sound like an innocuous statement, but it is critically important. This is because, over the years, judges have repeatedly ignored the fact that Article 19(2) exhaustively lists eight grounds of restriction, and that public interest is not one of them (unlike in Article 19(6)). Judges have upheld restrictions upon the nebulous grounds of “public interest” and “social interest”. In Ranjit Udeshi vs State of Maharashtra, for instance, while upholding obscenity law, Justice Hidayatullah traveled beyond the terms of the Constitution to observe that the freedom of speech “is subject to reasonable restrictions which may be thought necessary in the interest of the general public.” He then used that to elide the “decency and morality” clause with “public morality.”

In K.A. Abbas vs Union of India, while upholding a regime of pre-censorship upon cinema, that same Justice Hidayatullah observed:

“… social interest of the people override individual freedom. Whether we regard the state as the paren patriae or as guardian and promoter of general welfare, we have to concede, that these restraints on liberty may be justified by their absolute necessity and clear purpose. Social interests take in not only the interests of the community but also individual interests which cannot be ignored. A balance has therefore to be struck between the rival claims by reconciling them. The larger interests of the community require the formulation of policies and regulations to combat dishonesty, corruption, gambling, vice and other things of immoral tendency and things which affect the security of the State and the preservation of public order and tranquillity.”

In In Re Arundhati Roy, the contempt of court case, the Court held:

“… whether there can be a balancing between the two public interests, the freedom of expression and the dignity of the court.”

Examples may be multiplied, but there is a clear pattern here. The worst free speech judgments of the Supreme Court have come when the Court has traveled beyond its brief, collapsed the specific terms of 19(2) into a boundless and boundlessly manipulable vision of “public” or “social” interest, and then upheld the far-reaching restrictions that the government has sought to impose. There come times in the history of any constitutional court, when jurisprudence becomes so utterly untethered from the constitutional text and principles, that what is most urgently needed is simply a reaffirmation of the basic meaning of text and structure. In doing so, Justice Nariman has performed the incalculably important service of re-orienting free speech jurisprudence back towards its fundamental goals and purposes: interpreting the Constitution of a liberal-democratic polity.

“In the interests of”, “tendency”, and the requirement of proximity

Article 19(2) permits “reasonable restrictions” “in the interests” of the eight prescribed themes. The major contestation in Indian free speech law has turned upon the interpretation of “reasonable” and “in the interests of”. In Ramji Lal Modi and Virendra, two cases decided in 1957, the Supreme Court stated that the phrase “in the interests of” was wider in ambit than the phrase “for the maintenance of”, and consequently, authorised the government to regulate any speech that had a “tendency” towards, for instance, public disorder. In Modi, the Court upheld S. 295A on the ground that intentional outrage to religious feelings had the “calculated tendency” (sic!) to disrupt public order. In Virendra, the Court held prior restraint upon the press under the colonial era Press (Emergency Powers) Act to be constitutional, for the same reason. A plea that there must be proximity between speech and disorder was expressly rejected in Modi.

The word “tendency” is pernicious and damaging. It speaks back to American free speech jurisprudence in the 1920s, when the Supreme Court used a “bad tendency” test to persecute anti-war dissenters, trade-union leaders, leftists and pacifists of various hues. Understanding the sheer unworkability of this test, the Court abandoned it in the 1940s, adopting Justice Holmes and Brandeis’ test of “clear and present” danger. The reason is obvious: “tendency” can mean just about anything, from imminence to the faintest causality. If I start smoking now, I will have a tendency to cancer, even though cancer may set in forty years later. But “tendency” has attained an ubiquitous place in Indian speech restricting laws. The Contempt of Courts Act, for instance, criminalises speech that can have the “tendency” of lowering the repute of the Court; S. 292 of the IPC criminalises material that “tends” to deprave or corrupt. And so on.

Fortunately, we did not have to wait as long as the US to push back against the idea of “tendency”. In Ram Manohar Lohia’s Case (1960), the Supreme Court cleverly “distinguished” precedent, and held that there was a requirement of proximity between speech and the threatened disorder, and that the connection must not be remote, arbitrary or fanciful. In Lohia, a law criminalising instigating people to not pay their taxes was struck down, because it was held not to have a proximate connection to public disorder. Subsequent cases have tightened this test – in S. Rangarajan, the Court held that the connection must be that of a “spark in a powder keg”, and in Arup Bhuyan, that there must be “incitement to imminent lawless action.” But “tendency” has also continued to be invoked by the Courts with alarming regularity. Soon after Lohia, the Court upheld the crime of sedition in Kedar Nath Singh (1962), on the ground that the State could legitimately criminalise speech that had a “tendency” to public disorder.

As in the case of “public interest”, we can immediately see that “tendency” has been responsible – again – for some of the most regressive and speech-restricting decisions of the Indian Supreme Court.

In the 66A judgment, Justice Nariman emphatically adopts the requirement of proximity. He cites Ram Manohar Lohia’s case, highlighting the need for an “intimate connection” between speech and the prohibited 19(2) category.

Incitement vs advocacy: Collapsing “tendency” into imminence

The requirement of an intimate connection is expressed by Justice Nariman in the form of a crucial distinction: between advocacy and incitement. In paragraph 13, he observes:

Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder…”

The distinction between “advocacy” and “incitement” is grounded in the idea of proximity, or imminence. For instance, my “advocating” a violent revolution against the State by writing articles in magazines, or even delivering public lectures, does not constitute “incitement”. However, my whipping up a mob into a frenzy and directing it to imminent violent action does. The enquiry is contextual, and is clearly limited to emergent, specific situations. In other words, Justice Nariman emphatically rejects the proposition that an idea, or a message, can be criminalised because of its communicative content. It is only when there is a relationship of immediacy between speech and action – “speech brigaded with action”, in the words of Justice Douglas – that the law can kick in. I have argued elsewhere that this view is consistent with our most basic ideas of individual autonomy and responsibility. But what is most interesting here is that Justice Nariman then collapses “tendency” into the incitement requirement. He says that it is at the stage of incitement when the law kicks in, to curtail speech that tends to cause disorder.

In other words, the concept of “tendency” that motivated the Court in Modi, Virendra and Kedar Nath Singh is emphatically discarded here. Justice Nariman holds that even if speech has a “tendency” to disorder (say, for instance, a revolutionary tract), that in itself is not a ground for restriction: there must, further, be incitement. To come back to my smoking example – I have a tendency to cancer when I start smoking, but cancer is “imminent” (or “inexorable”) only at a much, much later stage.

Thus, even while maintaining continuity with precedent, by continuing to use “tendency”, Justice Nariman effectively knocks the bottom out of the entire rationale for upholding 295A and sedition.

In paragraph 36 onwards, he buttresses this by collapsing tendency into the American “clear and present danger” test, even citing Modi and Kedar Nath Singh! In paragraph 41, he concludes the public order enquiry by holding:

“Viewed at either by the standpoint of the clear and present danger test or the tendency to create public disorder, Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates.”

There is a small quibble here: in paragraph 37, Justice Nariman observes:

“The test of “clear and present danger” has been used by the U.S. Supreme Court in many varying situations and has been adjusted according to varying fact situations. It appears to have been repeatedly applied, see- Terminiello v. City of Chicago 93 L. Ed. 1131 (1949) at page 1134-1135, Brandenburg v. Ohio 23 L. Ed. 2d 430 (1969)”

Strictly speaking, this is incorrect. The “clear and present danger” test was found to be prone to gross abuse during the McCarthy years, when the Court invoked it to convict communist party members and other dissidents. Far from using “clear and present danger”, Brandenburg vs Ohio was the case that rejected it, in favour of a more stringent “incitement to imminent lawless action” test. The Brandenburg standard was adopted by the Supreme Court in 2011, in Arup Bhuyan’s Case. In that respect, it is something of a pity that Justice Nariman endorses “clear and present danger” instead of Brandenburg. Nonetheless, it is also arguable that his disquisition on the distinction between “advocacy” and “incitement” effectively speaks to a Brandenburg level of protection, going forward.

Meaning of Public Order

The term “public order” is a term of art. In Romesh Thappar, independent India’s first free speech judgment, it was defined as “a state of tranquility which prevails amongst the members of a political society.” In Ram Manohar Lohia vs State of Bihar (a different case that also involved Ram Manohar Lohia), the Court conceptualised three concentric circles: “law and order” being the widest, “public order” being narrower, and “security of the state” being the narrowest. Thus, a disruption of public order is something graver than merely breaking a law, or disrupting “law and order”. In the free speech judgments since Lohia, however, this definition has been largely ignored (the Delhi High Court case cited above is a classic example). As in the case of rejecting “public interest” as a ground of restriction, the Court’s endorsement of Lohia provides a crucial reaffirmation of the fact that constitutional terms – especially terms that limit fundamental rights, cannot be arbitrarily expanded, and the Court must adjudicate constitutionality specifically upon the touchstone of their defined meanings.

On a combination of all these factors – that the terms of S. 66A did not establish a proximate link with public order, as defined, the Court held that Article 19(2) did not save that section, at least insofar as public order was concerned. The same analysis was applied to defamation, and decency and morality – the Court reaffirming its recent judgment in Aveek Sarkar’s case. The government’s attempt to escape unconstitutionality by adding an exhaustive set of guidelines (see para 48) was correctly rejected, on the ground that this was tantamount to rewriting the whole section. Consequently, the Court struck it down.

Vagueness

In Grayned vs Rockford, the American Supreme Court defined a vague statute as one which ensured that persons of “ordinary intelligence… have no reasonable opportunity to know what is prohibited.” In Kartar Singh v. State of Punjab, the Supreme Court – citing this case – observed that “it is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values… laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”

There are, therefore, two problems with vague statutes. One is a rule-of-law problem: citizens do not have a fair chance to plan their affairs. The second is a delegation problem: the executive is given far too much discretion to implement vague laws on the ground. We have seen both issues at play with the abuse of S. 66A over the years.

While in K.A. Abbas, the Supreme Court admitted that vagueness could be a ground for striking down a law, it did not do so (despite the Central Guidelines for film certification, which were at issue, being bizarrely overbroad.) In Baldeo Prasad, the Court struck down a law that criminalised goondas, but did not define who a “goonda” was. But the 66A judgment is the first time – to my knowledge – that the Court has struck down a speech-restricting law on the grounds of vagueness. Crucially, the Court observes that it is not possible for the legislature to cast “a net large enough to catch all possible offenders and leave it to the Court to step in and say who could be rightfully detained and who should be set at liberty.”

After citing a copious degree of American and Indian jurisprudence to establish the principle of vagueness, Justice Nariman correctly observes, in paragraph 69, that “judged by the standards laid down in the aforesaid judgments, it is quite clear that the expressions used in 66A are completely open-ended and undefined.” Further contributing to the vagueness are the absence of mens rea, and a series of terms (such as “obstruction”, “danger” or “annoyance”) which are ingredients of an offence in the Indian Penal Code (that of public nuisance), but have become offences in themselves in the IT Act (para 72). Justice Nariman distinguishes other IPC provisions that use identical terms (such as Ss. 294 and 510) on similar grounds, and ends by noting the sheer subjectivity of the words that constitute offences under the IT Act:

“… every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another. Even the expression “persistently” is completely imprecise – suppose a message is sent thrice, can it be said that it was sent “persistently”?”

Over-breadth and the Chilling Effect

Over-breadth is a concept that is closely connected with – but not identical to – the chilling effect. A statute is over-broad if – in the words of the Indian Supreme Court in Chintaman Rao vs State Madhya Pradesh,  “the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.”

Over-breadth directly implicates the reasonableness requirement of Article 19(2). In State of Madras vs V.G. Row, the Supreme Court held that a “reasonable restriction” under Articles 19(2) to (6) would have to satisfy the requirements of proportionality: “the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.” It is clear that if a statute proscribes conduct that is much broader than what is permitted under Article 19(2), on the ground that there is some – tenuous – connection between the two, there is good reason to argue that the restriction is disproportionate.

While in Chintaman Rao, the Court struck down a statute for being over-broad, over-breadth as a constitutional concept has not yet managed to acquire a foothold in Indian constitutional jurisprudence. Here again, Justice Nariman’s judgment breaks new ground by expressly invoking over-breadth as a ground for striking down a speech-restricting statute. In paragraph 83, he observes:

Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech.

And, in paragraph 86:

“[66A’s restrictions] fall foul of the repeated injunctions of this Court that restrictions on the freedom of speech must be couched in the narrowest possible terms.”

This is not all, however. Justice Nariman makes a further, crucial link: between vagueneness and overbreadth, and the chilling effect. The chilling effect refers to a situation where, faced with uncertain, speech-restricting statutes, which blur the line between what is permitted and what is proscribed, citizens are likely to self-censor, in order to be definitively safe. In the words of Justice Brennan, writing in New York Times vs Sullivan, citizens will “tend to make only statements which steer far wider of the unlawful zone… thus dampen[ing] the vigour and limit[ing] the variety of public debate.” In other words, the chilling effect – which applies across different areas of free speech law – ensures that self-censorship will extend even to entirely legitimate speech, and will impoverish the public discourse – the sustenance and enrichment of which is the entire point of free speech in the first place.

Yet again, it is crucial to note here that although past Indian cases have made vague references to the chilling effect (R. Rajagopal and Khushboo), again, the 66A judgment is the first that uses the concept to arrive at a positive legal outcome. In paragraph 83, after examining all the myriad kinds of speech that 66A will reach, Justice Nariman observes:

“Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.”

And, in paragraph 90:

“We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.”

Article 14 and differences by medium

One last point remains to be noted. The core of the government’s argument was that the internet is a very different medium from print or cinema, and that consequently, the government should be allowed greater leeway to regulate it. In paragraph 27, Justice Nariman lists some of the facets of the government’s contention: that the internet has a much greater (global) reach, it reaches both literate and illiterate people, even cinema has pre-censorship rules (but the internet doesn’t), rumours can spread to “trillions” (sic!) of people, there is much greater scope for invasion of privacy, the internet provides much greater shelter to anonymity, there are no internal regulatory norms, and that the spread is much more rapid.

In contradistinction, the challengers made precisely the opposite argument. They contended that since S. 66A lacked the kinds of procedural and other safeguards present for the regulation of print media, there was an Article 14 violation of equality. According to the challengers, a principle of equivalence must apply across media of communication.

Interestingly, Justice Nariman rejects both contentions. He rejects the Article 14 argument, holding that the internet is indeed a medium with some unique qualities, and that it is possible that there might be certain offences that can only take place online. In paragraph 28, he notes that the government is entitled to draft narrowly-drawn provisions that specifically speak to those offences (such as website blocking). But in the very same paragraph, he also notes:

“[the differential nature of the internet would not]  relax the Court’s scrutiny of the curbing of the content of free speech over the internet. While it may be possible to narrowly draw a Section creating a new offence, such as Section 69A for instance, relatable only to speech over the internet, yet the validity of such a law will have to be tested on the touchstone of the tests already indicated above.”

In effect, what kind of speech might be restricted is agnostic to media. Furthermore, when it may be restricted (i.e., the 19(2)) principles, and the relationship of proximity) is also impervious to the difference in media. The only place where this difference might be relevant is where the medium itself allows for certain kinds of offences (such as spam, or phishing) that were not possible before, and in such circumstances, the State may frame a law, which will nonetheless be tested on the anvil of Article 19(2).

This raises the following question: in K.A. Abbas, the Court held pre-censorship to be valid in the case of cinema on the ground that films had a much more striking impact upon the average “illiterate” Indian viewer. In other words, the difference in medium was held to justify a difference in the form of the restriction – in particular, doing away with the proximity test, or at least, diluting it to an unrecognisable degree. The logic of Justice Nariman’s judgment, I would suggest, knocks the bottom out of the prior-restraint regime of film-censorship. It is not as if films permit the commission some specific kinds of offences that were not possible before (unlike the internet). In fact, the Court’s reasoning in K.A. Abbas was specifically based on an (unproven) assumption of how an “illiterate” audience reacts differently to the written word and the visual image. Cases after K.A. Abbas (such as Anand Patwardhan’s Case) have rejected the “illiterate Indian trope”, thus undermining the foundations of that holding. The 66A judgment, however, rejects that form of reasoning entirely.

Consequences

Constitutionally, what follows? I would suggest the following. Ever since Ram Manohar Lohia, there has been a gradual, incremental chipping away at the philosophical foundations of some of our most regressive, speech-restricting laws. Consider the following:

(a) Ramji Lal Modi upheld 295A on the ground that proximity was irrelevant, specifically rejected an over-breadth argument, and held that deliberate insults to religion had a “calculated tendency” to cause public disorder.

(b) Kedar Nath Singh upheld sedition (124A) on the ground that disaffection against the government had the “tendency” to public disorder.

(c) K.A. Abbas upheld pre-censorship of films on the ground of how the medium differently affects viewers; it rejected a challenge to the Censorship Guidelines on the ground of vagueness, and did not even consider an over-breadth argument.

(d) Contempt of court judgments (unfortunately, rather consistently) have held that certain forms of criticism against the court have a “tendency” to undermine justice.

(e)  Apart from Rajagopal’s Case, which is limited to public officials, the Supreme Court is yet to examine defamation law on the touchstone of Article 19(1)(a), and a criminal law of defamation continues to exist on the statute books. In countries such as the US, Canada, South Africa, and England, the “chilling effect” of the common law of defamation (strict liability) has been expressly invoked to limit its reach, and its propensity to be used as a tool of harassing journalists and investigative reporters.

At the same time, however:

(a) Ram Manohar LohiaS. Rangarajan and Arup Bhuyan (the latter two coming after Modi and Kedar Nath Singh) have insisted on a proximity requirement between speech and disorder.

(b) Chintaman Rao and Kameshwar Prasad have struck down statutes on over-breadth grounds (while not directly invoking the concept).

(c) Rajagopal’s case has incorporated the Sullivan rule to protect writers from civil defamation claims brought by public officials, and indirectly invoked the chilling effect.

This latter group of judgments, it is clear, have indirectly, implicitly undermined the foundations of the former. The 66A judgment makes it direct and explicit. Proximity, over-breadth, vagueness and the chilling effect are all expressly invoked to strike down a statute. They have been specifically incorporated into Indian free speech jurisprudence, and may be invoked in future free speech claims.

So perhaps, at long last, the time has come to rethink fifty-year old judgments upholding blasphemy and sedition laws, rethink criminal defamation, throw off the oppressive fetters of civil defamation and contempt of court, and attack the censorship guidelines of both cinema and cable TV.

This judgment lays the constitutional, legal and philosophical terrain to do all of that. It creates the ground upon which we can erect a progressive, liberal understanding of free speech, based upon a vision of individuals as responsible and autonomous beings, who do not need “protection” from moral corruption, and who do not need a paternalistic State or court telling them what they need to read, see or here. Individuals, one and all, worthy of dignity and equal concern and respect.

This is the first judgment since 1960 that unequivocally affirms every one of those propositions.

It is the judgment that has given Indian free speech law its soul back.

The Supreme Court’s IT Act Judgment, and Secret Blocking

As has been widely reported by now, yesterday the Supreme Court delivered a landmark judgment striking down Section 66A of the Information Technology Act, reading down S. 79 (intermediary liability) and upholding S. 69A (blocking of websites). I will be writing a detailed analysis of the jurisprudence behind the Court’s striking down of S. 66A in a while. In this post, however, I want to briefly comment on S. 69A and secret blocking.

S. 69A of the IT Act authorises the government to block access to websites, on grounds that roughly overlap with (but are not identical to) Article 19(2) of the Constitution (reasonable restrictions upon the freedom of speech). S. 69A(2) specifies that the procedure and safeguards for carrying out blocking will be specified. Pursuant to this, “Blocking Rules” were framed in 2009. The Blocking Rules prescribe who can make a blocking request, set up the (executive) authorities that will examine the requests, provide an opportunity for pre-decisional hearings for the intermediaries (and/or, if they can be traced, originators), and lay out the process for blocking. There are three crucial aspects that must be noted:

(a) The Rules do not provide for an appeals process.

(b) Rule 15 requires that Designated Officer to maintain records of blocking requests and actions taken, but

(c) Rule 16 stipulates that “strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof.”

As is obvious, the main problem with the Blocking Rules (among many others) is their secrecy. The rules require notice to the intermediary, but naturally, intermediaries are bound to be far more interested in avoiding confrontations with the government, and in self-preservation, than in defending the freedom of speech. Furthermore, Rule 16 requires confidentiality, thereby raising the presumption that nobody beyond the intermediaries ought to know about a block. For instance, when the Software Freedom Law Centre attempted to get access to blocking orders for 1208 blocked websites in 2013, it was denied on Rule 16 grounds. As has been well-documented, it is often difficult to even find out that a non-accessible website has been blocked, and even more difficult to find out why that has happened.

In this context, what does the Court’s judgment, upholding both S. 69A and the Rules in their entirety, mean? At Medianama, Nikhil Pahwa argues that in effect, secret blocks will now continue, just as they were happening before.

There are, however, two important aspects that ought to be noted.

First, consider Rule 8 of the Blocking Rules:

On receipt of request under rule 6, the Designated Officer shall make all reasonable efforts to identify the person or intermediary who has hosted the information or part thereof as well as the computer resource on which such information or part thereof is being hosted and where he is able to identify such person or intermediary and the computer resource hosting the information or part thereof which have been requested to be blocked for public access, he shall issue a notice…”

The text of the Rule uses the phrase “person or intermediary”, thus implying that notice may be sent to either the originator or the intermediary. This – as explained above – is deeply problematic. In his article, Nikhil writes:

If my site is blocked, don’t I have the right to know why it’s been blocked? Mobango.com, a company owned by the People Group (Shaadi.com), was blocked in India for six months and didn’t know why for the longest time. Where was their Committee hearing? Where was the hearing for Vimeo, Github, Dailymotion (read), Imgur (read)? Shouldn’t they be informed of the process of getting a block removed?”

In Paragraph 110 of the judgment, however, the Court notes:

“It is also clear from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the “person” i.e. the originator is identified he is also to be heard before a blocking order is passed.”

In other words, the Court takes the disjunctive “or” in the Rule, and effectively transforms it into a conjunctive “and”. It therefore seems to be the case that henceforth – insofar as they can be identified, originators must also be notified of blocks, and given the opportunity to challenge them.

I would suggest, however, that the logic of the judgment goes even further. Consider Paragraph 109, where the Court holds S. 69A and the rules constitutional:

“It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.”

It is the “thirdly” that is crucial. The Court specifies that blocking orders must be reasoned, and in writing, so that they may be challenged under Article 226. Now, who may challenge a blocking order? Obviously, an intermediary and/or the originator are entitled to do so. But consider also paragraph 20 of the judgment, when the Court starts its examination of S. 66A:

“It is clear, therefore, that the petitioners are correct in saying that the public’s right to know is directly affected by Section 66A. Information of all kinds is roped in – such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious. That such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know – the market place of ideas – which the internet provides to persons of all kinds is what attracts Section 66A.”

The underlined portions tap into an established principle of Indian free speech jurisprudence: that Article 19(1)(a) guarantees not only the rights of speakers to express themselves, but also the rights of listeners (or, in the case of the internet, viewers) to access information (other Constitutions – such as the German and the South African – expressly include listeners’ rights as an aspect of the freedom of expression).

For instance, in LIC vs Manubhai D. Shah, while dealing with the rejection of a right of reply, the Supreme Court noted: “such an attitude on the part of the LIC can be described as both unfair and unreasonable; unfair because fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions and unreasonable because there was no logic or proper justification for refusing publication… the respondent’s fundamental right of speech and expression clearly entitled him to insist that his views on the subject should reach those who read the magazine so that they have a complete picture before them and not a one sided or distorted one…

And, in State of UP vs Raj Narain, Justice Mathew, in his concurring opinion, noted:

In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries.”

Examples can be multiplied, but suffice it to say that the right to information, and its corollary, the rights of readers and viewers to access information, constitute part of the right to freedom of expression under Article 19(1)(a). But if that is true, then a website block implicates the constitutional rights not only of intermediaries and originators, but also of the general public – each member of which, for that reason, has the right to challenge the blocking under Article 226, as the Court specifically upheld. Now, it is impossible to challenge a blocking order unless one has access to it. Consequently, when the Court says that blocking orders must be reasoned and in writing, so that they may be challenged under Article 226, it follows by necessary implication that the blocking orders must be made available to the public.

The doctrine of necessary implication is well-accepted in statutory interpretation. A statute is understood to contain not only what is express, but also that which is necessary to effectuate its “object or purpose”, or to make effective the rights (or privileges) that it grants. This doctrine would apply with even greater force to subordinate legislation, such as the Blocking Rules. Consequently, it may well be argued that even though the Court did not expressly overrule Rule 16, the logic of its judgment – in light of settled jurisprudence on Article 19(1)(a) – means that it did so impliedly. Admittedly, neither necessary implication nor implied overruling are to be lightly invoked, but in this case, not only does this conclusion seem to follow inexorably from the Supreme Court’s Article 19(1)(a) jurisprudence, but the fact that what is at issue is a subordinate legislation, the normal presumptions against necessary implication/implied overruling are consequently weaker.

This, of course, is probably an over-optimistic reading of the judgment. So perhaps the best way of settling this issue might well be through a clarification petition.

 

Net Neutrality, Free Speech and the Indian Constitution – I

(This piece first appeared on the CIS website, here)

Net neutrality is rapidly becoming one of the most important issues facing internet governance and internet freedom today, and it is quite likely that it will soon raise issues of law and legal policy in India. In this post (and the next), I will discuss net neutrality, free speech and the Indian Constitution.

I will not here go into the debates surrounding the multiple meanings of the concept of “net neutrality” but take, for the purposes of this post, the following definition:

The idea that all Internet traffic should be treated equally is known as network neutrality. In other words, no matter who uploads or downloads data, or what kind of data is involved, networks should treat all of those packets in the same manner.

In other words, put simply, net neutrality requires the extant gatekeepers of the internet – such as, for instance, broadband companies – to accord a form of equal and non-discriminatory treatment to all those who want to access the internet. Examples of possible discrimination – as the quote above illustrates – include, for instance, blocking content or providing differential internet speed (perhaps on the basis of a tiered system of payment for access).

Net neutrality has its proponents and opponents, and I do not have space here to address that dispute. This post – and the next – are premised on the assumption that net neutrality is both an important and a desirable goal (this brief article in the Times of India provides a decent, basic primer on the stakes involved).

An example of net neutrality in practice is the American Federal Communications Commission’s Open Internet Order of 2010, which was the subject of litigation in the recently concluded Verizon v. FCCThe Open Internet order imposed obligations of transparency, no blocking, and no unreasonable discrimination, upon internet service providers. The second and third requirements were vacated by a United States Court of Appeals. The rationale for the Court’s decision was that ISPs could not be equated, in law, to “common carriers”. A common carrier is an entity that offers to transport persons and/or goods in exchange for a fee (for example, shipping companies, or bus companies). A common carrier is licensed to be one, and often, one of the conditions for license is an obligation not to discriminate. That is, the common carrier cannot refuse to carry an individual who is willing and able to pay the requisite fees, in the absence of a compelling reason (for example, if the individual wishes the carrier to transport contraband). Proponents of net neutrality have long called for treating ISPs as common carriers, a proposition – as observed above – was rejected by the Court.

With this background, let us turn to India. In India, internet service providers are both state-owned (BSNL and MTNL), and privately-owned (Airtel, Spectranet, Reliance, Sify etc). Unlike many other countries, however, India has no network-neutrality laws. As this informative article observes:

The Telecom Regulatory Authority of India (TRAI), in its guidelines for issuing licences for providing Unified Access Service, promotes the principle of non-discrimination but does not enforce it… the Information Technology Act does not provide regulatory provisions relating to Internet access, and does not expressly prohibit an ISP from controlling the Internet to suit their business interests.”

In the absence of either legislation or regulation, there are two options. One, of course, is to invoke the rule of common carriers as a common law rule in court, should an ISP violate the principles of net neutrality. In this post (and the next), however, I would like to analyze net neutrality within a constitutional framework – in particular, within the framework of the constitutional guarantee of freedom of speech and expression.

In order to do so, two questions become important, and I shall address them in turn. First, given that most of the ISPs are privately owned, how does the Constitution even come into the picture? Our fundamental rights are enforceable vertically, that is, between individuals and the State, and not horizontally – that is, between two individuals, or two private parties. Where the Constitution intends to depart from this principle (for instance, Article 15(2)), it specifically and expressly states so. As far as Article 19 and the fundamental freedoms are concerned, however, it is clear that they do not admit of horizontal application.

Yet what, precisely, are we to understand by the term “State”? Consider Article 12: 

“In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

The key question is what, precisely, falls within the meaning of “other authorities”. The paradigmatic example – and this is something Ambedkar had in mind, as is evidenced by the Constituent Assembly Debates – is the statutory corporation – i.e., a company established under a statute. There are, however, more difficult cases, for instance, public-private partnerships of varying types. For the last fifty years, the Supreme Court has struggled with the issue of defining “other authorities” for the purposes of Part III of the Constitution, with the pendulum swinging wildly at times. In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, a 2002 judgment by a Constitution bench, the Court settled upon the following definition:

“The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.”

Very obviously, this dooms the ISP argument. There is no way to argue that ISPs are under the pervasive financial, functional and administrative domination or control of the State. If we step back for a moment, though, the Pradeep Kumar Biswas test seems to be radically under-inclusive. Consider the following hypothetical: tomorrow, the government decides to privatize the nation’s water supply to private company X. Company X is the sole distributor of water in the country. On gaining control, it decides to cut off the water supply to all households populated by members of a certain religion. There seems something deeply wrong in the argument that there is no remedy under discrimination law against the conduct of the company.

The argument could take two forms. One could argue that there is a certain minimum baseline of State functions (ensuring reasonable access to public utilities, overall maintenance of communications, defence and so on). The baseline may vary depending on your personal political philosophy (education? Health? Infrastructure?), but within the baseline, as established, if a private entity performs a State function, it is assimilated to the State. One could also argue, however, that even if Part III isn’tdirectly applicable, certain functions are of a public nature, and attract public law obligations that are identical in content to fundamental rights obligations under Part III, although their source is not Part III.

To unpack this idea, consider Justice Mohan’s concurring opinion in Unnikrishnan v. State of Andhra Pradesh, a case that involved the constitutionality of high capitation fees charged by private educational institutions. One of the arguments raised against the educational institutions turned upon the applicability of Article 14’s guarantee of equality. The bench avoided the issue of whether Article 14 directly applied to private educational institutions by framing the issue as a question of the constitutionality of the legislation that regulated capitation fees. Justice Mohan, however, observed:

What is the nature of functions discharged by these institutions? They discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution, is a public duty that requires… [it to] act fairly. In such a case, it will be subject to Article 14.

In light of Pradeep Kumar Biswas, it is obviously difficult to hold the direct application of the Constitution to private entities. We can take Justice Mohan, however, to be making a slightly different point: performing what are quintessentially public duties attract certain obligations that circumscribe the otherwise free action of private entities. The nature of the obligation itself depends upon the nature of the public act. Education, it would seem, is an activity that is characterized by open and non-discriminatory access. Consequently, even private educational institutions are required to abide by the norms of fairness articulated by Article 14, even though they may not, as a matter of constitutional law, be held in violation of the Article 14 that is found in the constitutional text. Again, the content of the obligation is the same, but its source (the constitutional text, as opposed to norms of public law) is different.

We have therefore established that in certain cases, it is possible to subject private entities performing public functions to constitutional norms without bringing them under Article 12’s definition of the State, and without the need for an enacted statute, or a set of regulations. In the next post, we shall explore in greater detail what this means, and how it might be relevant to ISPs and net neutrality.