On October 1^st, the Indian Supreme Court heard petitions relating to the media and communications blackout in Jammu and Kashmir (J&K) following the government’s effective abrogation of Article 370 on August 5^th. The Court adjourned the cases until October 16^th. The government’s telecommunications shutdown is incompatible with Article 19 of the Indian Constitution, which affirms a right to freedom of speech and expression. The Court’s adjournment of this case is indicative of a court that seeks to evade a pronouncement on the constitutionality of internet shutdowns in the name of ‘national security’, a reluctance reminiscent of a history of judicial deference whenever the Executive invoked ‘national security’ concerns.

Internet shutdowns are ubiquitous in India. The latest blackout in J&K is the 53^rd of 2019. Given its centrality to communication, access to the internet is a basic right under Article 19. In Ministry of Information and Broadcasting v Cricket Association of Bengal, the Supreme Court held that the airwaves or frequencies were ‘public property’. Accordingly, their use had to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights. Importantly, the Court held that “the right to impart and receive information is a species of the right to freedom of expression”. This was confirmed in Sabu Mathew George v Union of India and Ors, where the Court ruled that the right to access the internet could only be limited to prevent against illegality.

The petition before the Supreme Court challenges the communications blackout on grounds that it is an unreasonable restriction to the right to freedom of expression. The government’s core defence is based on Section 144 of the Code of Criminal Procedure 1973 (CCP). Section 144 is a colonial relic which empowers an executive magistrate to prevent unlawful assemblies of people, if such an order is “likely to prevent, or tends to prevent” various forms of public harm. According to the government, the shutdown, in this case, is based on the “apprehension that [provocative speeches, baseless rumours and incitement] are likely to disturb public order and tranquillity.” Section 144 was first applied to online communications in 2015 by the Gujarat High Court which upheld the state government’s decision to block public access to mobile internet services for close to a week in response to violent riots. As various critics of the judgement have observed, whereas the limitation of assemblies is limited in scope, electronic blackouts remove the internet platform altogether. The government’s arguments, in this case, are flawed for several reasons.

First, if tested, the shutdown of online communications under section 144 of the CCP will likely fail the proportionality test in Puttaswamy v Union of India and Ors (Puttaswamy). An internet shutdown does not constitute the minimal restriction “necessary” to the otherwise bona fide exercise of fundamental rights. Moreover, the provisions in Section 144 are vague, overbroad and do not correspond with the meaning of “reasonable restrictions” mentioned in Article 19(2), 19(3), and 19(4) of the Constitution. This argument is informed by the judgement in Shreya Singhal v Union of India, where the Supreme Court ruled that Section 66A of the Information Technology Act 2000 violated Article 19(2) because the power to arrest a person for posting allegedly “offensive” content on websites was “over-broad”.

Second, regulations governing the use of internet shutdowns do not ensure “procedural guarantees against abuse of such interference” (Puttaswamy). The government defends the shutdown on the basis of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, which were issued in 2017 under Section 7 of the Indian Telegraph Act 1885. The Rules sought to rectify perceptions of arbitrariness in the application of internet shutdowns, something they have failed to do. First, the Rules do not have a sunset clause, which means shutdowns can be for an indefinite period. Second, while the Rules mandate a ‘review committee’ to ensure a shutdown is in accordance with the law (i.e. that it was ordered due to public emergency or public safety), they do not authorise the review committee to do anything in practice should it find the order illegal. Third, the Rules require the review committee to evaluate the legality of a shutdown order within five working days. This is unreasonably long because the data on internet shutdowns suggests they typically last less than five days.

It has been argued that the Supreme Court’s continuing evasion of its constitutional duty to investigate the legality of the media restrictions resembles its historic failure to uphold the right of habeas corpus in ADM Jabalpur. In that case, the Court ruled the judiciary was to “act on the presumption that powers [of preventive detention] are not being abused”, enshrining a policy of “executive supremacy”. While the Supreme Court in Puttaswamy overturned that judgement, ruling that it should be “buried ten fathom deep with no chance of resurrection”, its current policy of delay and adjournment reflects its rebirth as a ‘national security’ court.

The frequency and indeterminate length of internet shutdowns foreground the urgency of a dialogue about how to regulate digital rights in a context of disruptive national security challenges. Current trends would suggest the exception is becoming the norm.