Media And Constitutional Law - Navigating Freedom Of Speech Under Article 19(1)(A)
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Category: Constitutional & Human Rights
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MEDIA AND CONSTITUTIONAL LAW: NAVIGATING
FREEDOM OF SPEECH UNDER ARTICLE 19(1)(A) Issac Shaji, School of Law Christ (Deemed to be University) John M Cherian, School of Law Christ (Deemed to be University)
ABSTRACT
The expanding reach of newspapers, television, radio, and the internet has made the media an even stronger pillar of our political existence highlighting the media's vital role in the political landscape. With the proliferation of newspapers, television, radio, and the internet, the media’s influence has grown even stronger, particularly in shaping public opinion on crime, suspects, and accused individuals. While the freedom of the press is a fundamental right in civil society, its scope now extends beyond just verbal expression. It includes circulating views through written and audiovisual means, advertisements, and various other communication channels. This broad right also encompasses the right to information and self-expression. In India, the right to freedom of speech and expression is enshrined in Article 19(1)(a) of the Constitution, classified as a fundamental right.
While freedom of the press is not explicitly mentioned, it is inherently included within the right to freedom of expression. This right allows individuals to voice their opinions freely, which is essential to democratic functioning and personal fulfillment. However, the Constitution of India also imposes reasonable restrictions under Article 19(2). These restrictions ensure that the exercise of freedom of speech and expression does not compromise the sovereignty and integrity of India, state security, or friendly relations with other nations. Additionally, it upholds public decency and morality and protects against contempt of court, defamation, or incitement to an offense.
This paper would like to emphasise the requirement of much stronger legislation in India for controlling media especially new media such as OTT Platforms, and also the requirement for the Right to Internet to be considered as an essential fundamental right. The paper aims to balance between freedom and reasonable restrictions crucial to maintaining the social and legal fabric of the country. Keywords: Freedom of speech and expression, Victim Rights, Media Regulation, Reasonable Restrictions
Introduction
Media does play a crucial role in the 21st century as media helps in the facilitation of news, and events on matters of public interest that are provided in a unbiased manner. But in the recent growth of the internet and stardom of media channels fighting for viewership The Oxford Advanced Learners Dictionary defines "media" as the primary channels via which a sizable population obtains amusement and information. Broadly speaking, the term "media" refers to "an intervening agency, means, or instrument" for communication, such as print, electronic, and social media that is, newspapers, books, magazines, radio, various news channels, WhatsApp, Instagram, Facebook, the internet, etc. that spread ideas and information among a sizable audience.
A business dictionary defines media as channels of communication used to spread information, entertainment, education, news, and promotional messages. In 1950 In the case of Indian Express V. Union of India, The Supreme Court ruled that Freedom of the Press is implicit in the guarantee of freedom of speech and expression in Article 19(1)(a) of the Constitution. 1, also the Supreme Court of India has emphasized in several cases the importance of maintaining freedom of the press in a democratic society. Censorship of the press again, is not specially prohibited by any provision of the constitution. In this paper, we discuss two main aspects which are OTT platforms as well as the Right to the Internet which is an essential part of media and comes under the ambit of Freedom of Speech and Expression guaranteed under Article 19 (1) of the Constitution. Research Questions
1 ) OTT Platforms as New Media: Need for a Separate Legal Framework?
2) Can the Right to the Internet be considered as a Fundamental Right?
OTT Platforms as New Media: Need for a Separate Legal Framework? Introduction OTT is defined as over-the-top platforms, these platforms are said to be one of the newest
1 Constitution of India., art. 14 cl. a (1950)
innovations that have been introduced in the 21st century and are preferred over television. OTT platforms refer to those platforms where a subscription fee can be paid and then the user can avail the services which are available which include a series of Movies and TV Shows. Recent trends show us that certain platforms like Amazon Prime Video gain exclusive ownership to stream certain TV Shows and movies that can cater to different audiences. This 21st century has seen a paradigm shift from televisions to OTT Platforms due to their ease of access which is slowly creating a niche for themselves in the entertainment industry. Broadband video and audio services delivered without the involvement of a multiple system operator in content distribution or control are commonly referred to as over-the-top (OTT) content. 2.
The reason for the rise in OTT Platforms when compared to traditional sources such as Television is the ease of access. Users can avail of these services by paying an amount and also with the help of the internet where users can watch shows from their homes and can also download shows if the internet is not available this allows them to watch movies while traveling which can be seen as a benefit to the users. These factors combined have caused a growth in the entertainment industry and therefore OTT can be considered as a form of media and the makers are entitled to their freedom of expression but this freedom of expression must not cross the reasonable restrictions that are present in Article 19(2).
The Pandemic had then again caused a boom in the OTT industry as they had increased user usage this is still considered to be a rise as It's likely that this trend will continue and get stronger shortly. Owing to its extensive reach, it is now imperative to reconsider the judgment regarding Over the Top (OTT) platform regulation. OTT Platforms and Freedom of Speech and expression Since Reliance Entertainment introduced the nation's first over-the-top (OTT) platform in 2008, these online media platforms have genuinely taken the entertainment business by storm.
There are currently many over-the-top (OTT) platforms in India, and given the exponential growth in the country's usage of these platforms, it is anticipated that by 2023, India will have surpassed South Korea which is regarded as one of the most significant and developing OTT 2 Grace Li, Regulating over-the-top services in Australia - from universal service obligation scheme to OTT regulation, Vol. 8, No. 1 Int. J. Private Law, (2015), ijpl. 2015. 066715. pdf. industries globally to become the eighth-largest OTT industry globally3. OTT Platforms have been a tremendous source of help to people who are seeking employment as opportunities were given and boosted the economy but it is not without its downside as movies that are aired by OTT platforms have become the center of discussion due to their content.
India is a country which is known for its diverse culture the interest of each individual has to be taken into account when catering to a mass audience. There have been recent controversies that sparked problems in the community due to their content. In the recent film regarding the hijacking of IC-814 it was stated that it had distorted facts about what had occurred during the actual event in the movie The head of content for the OTT platform in India was called by the Ministry of Information and Broadcasting, who gave them instructions to take public opinion and religious sensitivities into consideration. 4. This does highlight the need for regulation laws regarding the laws of OTT platforms as this does not amount to constructive criticisms that are being provided under Article 19(2).
The controversy that did arise in this instant scenario was in regards to when a few viewers claimed that the show purposefully omitted the five terrorists' religious identities from the hijacking. The "Hindu names" that the Pakistani terrorists participating in the hijacking used as aliases were the subject of discussion. This had caused animosity among the Hindu groups in India. The reason why directors often choose to telecast shows on OTT platforms rather than movies is that OTT Platforms are exempt from CBFC or other statutory body accreditation requirements. Consequently, this provides filmmakers with additional motivation and freedom to create content without worrying about it being subject to Censor Board restrictions.
This paper aims to analyze that if the form of expression is outside the scope of Article 19(2) reasonable restrictions then they must not be allowed to be broadcast. An appeal was filed in Divya Ganeshprasad Gontia v. Union of India5, asking for the content of the web series to be regulated. It mentioned the Netflix series Sacred Games and Gandi Baat on the ALT Balaji platform. There is disagreement over whether these shows' pornographiclike, obscene, and vulgar sequences violate the Cinematograph Act, the Indian Penal Code, the 3 Manoj B A, Regulation of OTT Content in India: An Analysis, Journal of Xi'an University of Architecture Technology, http://www. xajzkjdx. cn/gallery/235-april2020. pdf, (2020) 4 https://indianexpress. com/article/india/all-you-need-to-know-about-the-ic-814-kandahar-hijack-controversy- 9555143/ Last accessed on 18 September 2024
5 Divya Ganeshprasad Gontia V. Union of India, PIL NO 127/2018 HC Bombay
Indecent Representation of Women (Prohibition) Act, and the Information Technology Act. Given this appeal, the Bombay High Court sent notifications to the MIB asking for the regulation of such online series. Judicial Standpoint for OTT Platforms OTT Platforms have been a great source of entertainment to users but since OTT Platforms are often unregulated, they often get away from the eyes of the law and create content that can be seen as discriminatory towards certain groups. One of the most recent examples of how a movie may go wrong is the Bollywood production "Padmaavat". It was claimed that the historical period picture disparaged the Rajput caste's standing. The protesters' threats against the performers and the film's director escalated the dispute into violence. This paper will also analyze the views of the judiciary regarding content regulation in the recent decade in India.
In the case of Nikhil Balla V. Union of India6 In this case, petitioners were filed against Netflix India for showing the former prime minister an appeal was filed against Netflix and Phantom in the Delhi High Court. Two "offensive" scenes and three "offensive" remarks (with subtitles) There were also demands made against the former prime minister and his family to be removed from the petition. Furthermore, the petition claimed that the initiative "inaccurately portrays national historical events, such as the Bofors case, the Babri Masjid case, the Shah Bano case, and the communal riots case. The OTT media service providers requested a rule-making procedure. Petitioner in the court appeal.
In the end, the Petition was denied on the justifications for the Information Technology (Intermediaries) Act and the IT Act Guidelines) Rules, 2011 were adequate to address any offensive material on these kinds of platforms. These laws however have been updated with the Information Technology Guidelines of 2021 stating the following conditions which were laid down • Nothing that disrespects the nation should ever be published. • No material that shows contempt for the national anthem and flag should be published. • Nothing that offends religious sensibilities should be exposed.
6 Nikhil Bhalla V. Union of India, WP(C) 7123, 2018.
Any publication or public display of child pornography is prohibited. Nothing that is against national law or order is allowed to be broadcast. "Over-the-top platforms are not allowed to broadcast anything that shows terrorism. However, the paper would like to stress on aspect that these are just considered to be guidelines and do not amount to strict codified legislation as these guidelines may not be always followed by the directors. In the controversy involving Udta Punjab7 The court ruled that because the Central Board of Film Certification lacks the authority to regulate OTT sites, it normally has no duty to do so.
The former chief justice of the Delhi High Court stated that although the CBFC has the authority to control the content of movies, it is unable to control the content that is released on over-the-top (OTT) platforms and is powerless to take any action since it lacks legislative authority. The Artistic freedom that is provided under Article 19(2) is not absolute it has to apply to certain restrictions. To control the digital realm, especially OTT Platforms, the government created the Digital Media Ethics Code (Intermediary Guidelines), 2021, last year. According to the guidelines, OTT Platforms are required to provide a grievance redressal process. This way, any user who has a problem with any material on the platform can directly address the platform and get a prompt resolution.
Even after the aforementioned rules were created, attorneys, including so-called constitutional "experts," have regularly gone before the courts asking for orders to delete or prohibit films or web series due to excessive obscenity, foul language, public morality, hurting religious feelings, etc.
A recent example of this can involve a Malayalam film called Churuli, Lijo Jose Pellissery is the director of the Malayalam film "Churuli," which Chemban Vinod Jose is co-producing. Both of them were impleading as Respondents, along with the performers. The writ suit prayed for the film to be taken down from the Over The Top (OTT) platform, in this case Sony Liv, another respondent. The petitioner argued that the language used by the characters in this movie violates morality, decency, and public order since it is vulgar and filthy. Additionally, it was argued that the release of these kinds of films on OTT platforms would encourage criminal activity and break relevant legal statutes. The judgment states that The one-judge panel led by Justice P. V. Kunhikrishnan ruled that his court could not order the filmmaker to employ a
7 Phantom Films Pvt Ltd. V. The Central Board for Film Certification, 2016 SCC Online Bombay 3862
specific slang term for the characters in the film by citing Article 226 of the Indian Constitution. He added that the only thing this court could do was to confirm whether the showing of the "Churuli" movie breaches any current laws that were put in place to protect morality, decency, or public order. He did, however, note that one should consider the artistic freedom of the filmmaker when making such a decision. This case showed the mixed opinion of the judiciary regarding regulating content as different courts have taken varied stances regarding the regulation of OTT material. This argument can be sustained with the case of Padmanbath Sankar V. Union of India. 8 Where the court ruled that the contents of OTT platforms cannot be considered public exhibitions and should not be subject to censorship laws.
Non-Applicability of Censorship Laws for OTT Platforms In regards to Movies are governed by censorship boards to regulate their content and the content is also classified based on age group regarding violence into different subcategories. OTTs are a significant and indispensable part of the media landscape for entertainment. These platforms are exempt from traditional regulatory regimes. The Cinematograph Act makes no mention of OTT platforms in any of its clauses. Moreover, the judiciary has consistently declared that OTT websites are outside its jurisdiction. Additionally, while the Information Technology Act, of 2000 is in force, litigation against OTT platforms cannot be filed under any other statute because it contains particular provisions that bring them under its jurisdiction.
Post the Tandava case, The SC came to the view that the Information and Technology Act does not have enough provisions to regulate OTT content and therefore directed the legislature to create laws regarding regulation of OTT Platforms in India. Conclusion Every aspect of our society has been changing, and the entertainment sector is no different. In the entertainment business, society has tried and continues to experiment greatly. The entertainment industry has transitioned from large-scale screen experiences to content provided via over-the-top platforms. With the help of this platform, people can enjoy entertainment from the comforts of their homes, and the sector is undoubtedly growing rapidly.
8 Padmanabh Shanka v. Union of India, WP 6050, 2019.
The OTT world has transformed the industry, but it has also raised awareness of the issue of unlicensed material. Unregulated content, which frequently exposes viewers to pornographic and controversial situations, has been a source of concern for the industry, particularly in India where there is a lot of controversy about entertainment. The judicial standpoint regarding OTT has been of mixed opinion and does not follow a streamlined process. OTT platforms can be recognized as a new form of media and restrictions under Article 19(2) are said to apply to OTT platforms as the directors cannot publish any content which can affect the religious sentiments of people. The effects of OTT on society are more extensive, and this growing sector necessitates its own set of defined laws.
OTT platforms are used as a form of misuse by directors to put content that can affect the religious sentiments of people as there is no pre-censorship as for movies they have to be presented before a censorship board RIGHT TO INTERNET - A FUNDAMENTAL RIGHT?
Introduction
The Oxford Dictionary defines the Internet as a a worldwide network of computer links to store and access information; a system based on communication that uses standardized communication protocols to provide a wide range of information and communication functions. But with one click, a complete universe opens up for an ordinary person. In today's life, it is nearly a necessity to lead a joyful social life by surfing the Internet. It is not possible to keep oneself from the internet nowadays, because it is so much more than just a site of social networking; it is also a commercial tool, an information provider targeted to individual users, and, during the time of COVID-19, a very essential learning tool. Applying for a job, hailing a taxi, or using a Google map to get wherever you're headed can all be done instantly. It seems almost necessary in daily, basic work.
Bar someone from having access to it and their day-to-day work business or career will certainly suffer, not to mention the loss of money the public at large will experience. Internet Shutdowns in India India recorded the maximum number of Internet shutdowns in the world for the sixth successive year, with the Internet having been snapped 116 times in the country in 2023, said the ‘Keep It On’ coalition, an association of civil society bodies that oppose Internet blockades, in a report in The Hindu. 9. Officials in India continue to issue shutdown orders over the Internet due to communal tension and violence, exams, and a long list of other rationales. Civil society in India and worldwide has roundly condemned the move, most especially in Manipur, where footage documenting atrocities carried out during the ethnic violence has gone viral several weeks after the incidents took place.
According to the report, more and more shutdown orders are imposed regionally, rather than locally, with "64 shutdown orders affecting more than one district in the same State, province, or region, driven by 47 shutdowns in Manipur but also including the Statewide shutdown in Punjab in March". The Internet has been shut down several times in Manipur in the context of the continuing ethnic strife in the State and across Punjab during the hunt for pro-Khalistani preacher Amritpal Singh. "The effects [of the Internet shutdown in Manipur] were devastating, mainly to women, as the shutdowns further complicated the documentation of the brazen atrocities--murder, rape, arson, and other gender-based violence--and, therefore, made it more challenging to hold perpetrators accountable," said the study.
The study observed that, as per the directions from the Supreme Court, Internet shutdown orders were announced arbitrarily. The study claims that "13 States and Union Territories implemented shutdowns in 2023, with seven of them causing five or more disruptions to Internet services. " It further says, "Shutdowns lasting five days or longer increased from 15% of all shutdowns in 2022 to more than 41% in 2023. " There have been some 500 instances of Internet cuts in total in India. The controversial measure is quite widely used, notes the paper. The statement read, "Authorities continue to implement shutdowns at all levels throughout India during protests, exams, elections, and communal violence, despite clear economic effects, disproportionate
9 The Hindu, India Records Highest Number of Internet Shutdowns Globally in 2023, (Sept. 17, 2024),
https://www. thehindu. com/sci-tech/technology/india-records-highest-number-of-internet-shutdowns-globally-in- 2023/article68178061. ece impacts on marginalized groups, and the shielding of atrocities. " Myanmar ranked second with 37 orders, after Iran with 34, Palestine with 16, and Ukraine with 8, behind Internet shutdowns when the military overthrew the country in a coup in 2021. Right to freedom of speech and expression • Article 19(1) (a) in The Constitution of India 1949 - All citizens shall have the right, to freedom of speech and expression. • Article 19(1)(g) in The Constitution of India 1949 - All citizens should have a right to practice any profession, or to carry on any occupation, trade, or business. Freedom of speech and expression appears to be the right that supports the right to the Internet most.
The internet has emerged as an easily accessible and efficient forum to exchange ideas, and views, and talk about the affairs of modern times; it is a tool for exercising this right. The importance of free speech, therefore, marked the beginning of the discussion about the right to freedom of speech and expression. The Supreme Court ruling established this historic case of Anuradha Bhasin v. Union of India and Ors. 10, which stipulates that the state is to safeguard the right to carry on any occupation, profession, or trade online as guaranteed under Articles 19(1)(a) and 19(1)(g) of the Indian Constitution.
But, in any case, as Articles 19(2) and (6) of the Constitution— which include the principle of proportionality—apply only to limit these basic rights, the internet is an indispensable tool for both trade and business and as it provides the virtual marketplace, so much more does it become necessary for managing an e-commerce enterprise. The Supreme Court ruling is the same as that of the United Nations suggestion which requires each country to ensure that infrastructure is in place so that citizens of that nation can utilize the Internet. The Indian State of Kerala was the first to declare internet access as a fundamental right in 2019.
10 AIR 2020 SC 1308
"Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not subvert, the substantive right itself," observes the Apex Court in Maneka Gandhi v. Union of India11. In PUCL v. Union of India12, the Supreme Court has observed that Article 19(1) (a) of the Constitution bestows protection to the right to freedom of speech and opinion. In this sense, "freedom" means the right or ability to speak, write, print, express oneself pictorially, or as the case may be, to express oneself in any manner whatever. Article 19(1) (a) of the Indian Constitution accordingly safeguards the usage of the internet because it allows citizens of India to express their opinions on a global level.
Article 21 of the Constitution is an unfilled jar with a more expansive degree into which people must pour their content in light of their experience. There is no difference between a right granted under Article III of the Constitution and those that have been declared through Supreme Court decisions.
Article 21 in The Constitution of India 1949- Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. One of the most important legal protections is the right to life. This is an expansive right free from any restrictions and, in general, has been interpreted to cover all such needs for a life of dignity. It includes many rights necessary to deliver the dignified life it is intended to confer, this being because this right does not only mean the existence of animals but also their right to one. This is argued to be closely related to the right to a livelihood, which is necessary for survival. The Supreme Court of India held a judgment. 13 That the right to life encompasses the right to subsistence.
It was accepted that without the ability or means to exercise that right in a meaningful way, the right to life is meaningless. The Court reasoned that taking away someone's means of subsistence to the point of abrogation would be the easiest way to deny them their right to life under the Constitution if the right to livelihood is not recognized as an
11 Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248
12 PUCL v. Union of India, (2003) 4 S.C.C. 399
13 Olga Tellis v. Bombay Municipal Corporation,A.I.R.1986,SC 180
integral part of that right. The relationship of the internet with livelihood needs to be studied because the right to livelihood essentially constitutes a part of the right to life and is also accorded similar protection as offered to the right to life. Information technology has revolutionized every facet of life and work. It means progress and development. The Internet is now an indispensable source of income. In many ways, information supports a livelihood. With information, various applications are supported and hold benefits in response to the demands, resources, and possibilities of various users. Information and the internet have thus had many impacts on human life.
• UHCRC General Assembly: The freedom to access the Internet was declared a human right in 2016, declaring that there should be no external restriction or interference with anybody's ability to exchange or seek information via the Internet. When using the internet, everybody has the right to network equality, safety, security, and privacy. It has been proclaimed and accepted that freedom of speech and expression forms part of the basic human right. Most of the significant international accords and covenants have given the right its mandate. Since the UN Human Rights Committee already published its opinions in General Comment No. 34, that a global network of exchange of ideas and opinions exists that need not be channeled through traditional mass media intermediaries, there is an opportunity for the internet to converge to the global guarantee of freedom of speech and expression.
States parties will take all measures necessary to facilitate the independent function of these new media and have access to them. It therefore signaled a break with past forms of declaration and paved the way for the incorporation of the "new" media within the boundaries of the right. Article 19 of the Universal Declaration of Human Rights, the Charter of Human Rights, states, "Everyone has the right to freedom of opinion and expression. " This right signifies the right to hold opinions without any hindrance or restriction and the right to seek, receive, and disseminate information and ideas through any media, including the edges of borders. One crucial finding in this context is that the right encompasses the freedom to have opinions as well as the ability to seek, acquire, and disseminate information, suggesting that there is room for knowledge to be shared via a variety of mediums.
The right has a broad scope that encompasses the whole information exchange process and is not limited in its use. While the latter encompasses freedom of speech and expression, for which the Internet has arisen as a possible medium, the former are not inherently impacted by the Internet, according to the preamble of the International Covenant on Civil and Political Rights. Similar language with better details may be found in Article 19 of the ICCPR, which declares that everyone has the freedom to express their thoughts without hindrance.
Restrictions • Section 5(2) in The Indian Telegraph Act, 188514- On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or other officials who hold such authority regarding a particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed publicly and in case of any government authorized person there needs to be a valid reason of justification regarding such an allegation And to be made sure that such action is out of there authority. If absoluteness does exist, it is a myth; the inevitable outcome is anarchy and chaos. Freedom and rights may be indispensable for life, but they should always be limited by laws. Still, the limitation cannot negate the very nature of the rights.
The entitlement should be preserved, not the limitations. It cannot be done to invalidate the right's enforcement; instead, it is only a precaution. It is a condition that must be met before the right can be exercised; not a means of limiting such rights. If this interpretation is right, there's no reason to have a right in the first place. A grant that is, in essence, refused cannot be made; it cannot be conditional in the slightest. Rights under the right of freedom of speech and expression are subjected to some restrictions over which there was a contentious debate also in the Constituent Assembly. Some of its members thought that the restrictions were justified, while others felt they were too vague to
14 The Indian Telegraph Act, No. 13 of 1885
easily override the rights and render the guarantee meaningless. Prof. K. T. Shah voiced his alarm over the scope of these limitations and the risk they pose to the exercise of the lawful right. He said, "The exceptions are much more emphasized in each of these clauses than the positive provision, so if all the freedoms in this article are to be following the provisions of this article, or are to be guaranteed subject to provisions of this Article only, then they would amount more to a negation of freedom than the promise or assurance of freedom. " In actuality, three or four left hands appear to take away what is offered to the right hand. To avoid this kind of imbalance between rights and limitations, the word "reasonable" was coined. So although the right to freedom of speech and expression is considered intrinsic, there has to be an injunction on the use of the Internet.
The State needs to prove that such restrictions are reasonable in nature. Additionally, such restrictions should not jeopardize the right itself. • Section 144(1) in The Code of Criminal Procedure, 197315- Power to issue orders in urgent cases of nuisance or apprehended danger.
In the situation where the magistrate of the court thinks that there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order concerning certain property in possession of such a person who is going to use it for civil unrest, public annoyance or provoking people to stand up for a right participate in any unacceptable action st a result of provocation The Internet was restricted through Section 144 of the CrPC until the Temporary Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017.
Under the section "temporary measures to maintain public tranquility" of the CrPC, Section 144 alone is a provision that grants State Governments "the power to issue orders for immediate remedy in urgent cases of nuisance or apprehended danger. " Regarding the authority and procedure of shutdowns, it would be quite interesting to mention the following points in the Section:
1. This Section equips an Executive Magistrate, a district magistrate, a subdivisional
magistrate, or any other Executive Magistrate particularly authorized by the State Government
15 The Code of Criminal Procedure, No. 2 of 1974, INDIA CODE (1973)
on his behalf to pass orders.
2. An order under this Section can be made only when the issuing authority is satisfied that
there are adequate reasons for the Section to operate—grounds that call for a prompt and urgent remedy.
3. An order under Section 144 must be served in line with the relevant legal procedure, in
writing and stating the important facts of the case.
4. The directive might be an action or inaction regarding property that a person owns or
supervises.
5. The order should be "likely to prevent or tend to prevent obstruction, annoyance or injury to
any person lawfully employed or danger to human life, health, or safety, or a disturbance of the public tranquility or a riot or an affray," according to the issuing authority. Whether the above clause is capable of banning the use of the internet is indeterminable. This clause, on its archaic nature and the clear legislative intent, would not adopt itself in the vein of measures for prohibition through internet usage. In Gaurav Sureshbhai Vyas v. State of Gujarat16, this was even argued in court. It was submitted that Section 144 of the CrPC does not empower the State to bar the internet and that the Information Technology Act, 2005 has adequate procedures for the same. The Court held that the State Government is an appropriate authority vested with the power to exercise the aforementioned powers judiciously, keeping in mind the public interest and sufficiency of action.
It held that Section 144 of the Criminal Procedure Code, 1973, and Section 69A of the Information Technology Act, 2005 performed two different scopes of operations. The Supreme Court dismissed a Special Leave Petition for the same reason. • Temporary Suspension of Telecom Services (Public Emergency or Public Safety Act) rules, 201717 The rules had an elaborate procedure; the authorities competent under them were:
16 W.P (PIL) No.191 Of 2015
17 Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, G.S.R. 998(E), Gazette of India
1. In the case of the Government of India, the Secretary is the Minister of Home Affairs.
2. In case the State Government is a party, the Secretary
According to the rules, it can only be issued by a competent authority. The protocol noted in the guidelines has to be followed very strictly. However, "under unavoidable circumstances" an officer with the rank of joint secretary or above, with the sanction of the Union Home Secretary or State Home Secretary, may make such an order. Still, the recommendations do not define clearly what circumstances are meant to be "unavoidable. " Further, this section prescribes that the order issued by the competent authority should contain "reasons for such direction" and that a copy of the order should be sent to the review committee by the next business day. "Where it is constituted by the Central Government—Cabinet Secretary, and Secretaries of Legal Affairs and Department of Telecommunication," are the members that will make up the Review Committee.
The Chief Secretary, Secretary of Law or Legal Remembrance-in-Charge, and Secretary to the State Government (apart from the Home Secretary), are the State Government officials who form it. Within five working days from the date of raising such an order, the Review Committee shall sit together and decide on the suspension order whether it is by Section 5's sub-section (2) of The Indian Telegraph Act or not. Judicial Precedents In the case of Anuradha Bhasin v. Union of India18 In 2020, the Supreme Court held that access to the Internet forms an intrinsic part of freedom of speech and expression. The restriction of internet services for such a large population without there being proper reasons for doing so is something wrong because it denies people their fundamental human rights.
This brought internet services to Jammu & Kashmir following this judgment, albeit at 2G speed, and the Supreme Court later described this as questionable. The Government argued that it was for national security reasons and that the closure of such an Internet-related apparatus to preserve peaceful and orderly community conditions was
18 Id at 3
required. The court ruled that a legitimate reason existed for the shutdown of the Internet even though the lack of it undoubtedly prejudiced the locals, most particularly the students. In the Shirin R. K. v State of Kerela19, the students of the hostel were prohibited from carrying their mobiles beyond a certain time of the night. The reason for doing so was due to some parental requests. The students were asked to leave the premises when they violated this rule. The petitioner had assumed that the availability of the internet was a right, and as such, she could not be denied access to it. Furthermore, her parents were opposed to the adoption of the rule in question. Regarding this, the court declared that internet access is a right for the people and the limitation was fully unnecessary.
So, the court demanded that Shirin be allowed to go back to her college and hostel and asked to repeal the order. Considering that Article 21 of the Indian Constitution, which poses the right to privacy along with the right to education, is connected with access to the internet. Suggestions As of now, the power lies within the states to deny access to the Internet. Instead, it would be better if the central authority took over and the states surrendered to them. However even while it remains the case that it might be required some time for the government to impose an Internet restriction for a limited time. Then, instead of blocking the whole Internet, the government would be in a position to shut down certain social media sites that could be used for false information and public up-roar. This means the ban should be selective or partial and not whole.
This would reduce the financial loss and, to some extent, the nuisance that the general populace would have to bear from the shutdown. This could be in the form of setting a bar for an Internet shutdown with conditions such as specifying that it should not be caused by a reason that will not cause social unrest and should be authorized only in instances of severe need. Conclusion In the light of Articles 19(1)(a), 19(1)(g), and 21 of the Indian Constitution, giving protection to freedom of speech, expression, and livelihood, it appears that the fundamental right to
19 Shirin R.K. v. State of Kerela, 100 KLJ 250 (Ker. 2020)
internet access has emerged as a very important element of basic rights. The internet has transformed itself into an essential means of communication for social life, trade, education, and information. Legal precedents that have dealt with the issue involving the importance of internet connectivity in modern lives, such as Anuradha Bhasin v. Union of India, Shirin R.K. v. State of Kerala, and others, support this conclusion. Here, competition and contest between the rights of the individual and the power of the state to order internet shutdowns under Section
144 of the CrPC and Temporary Suspension of Telecom Services Rules comes to the forefront.
Despite these legitimate security concerns, completely shutting down internet services has immense negative effects on the economy and society at large, causing greater harm to marginalized communities. As such, in the future, a balanced measure shall be taken to place partial or selective restrictions during emergencies instead of complete shutdowns. Partial shutdowns of the internet will enforce the people's rights to knowledge and subsistence while protecting national security. Effective judicial scrutiny will also ensure that measures are not arbitrary and that any limitations imposed will be reasonable and proportionate.