Freedom of speech, right to business through Internet constitutionally protected: SC

The top court said that right of trade and commerce through Internet is also constitutionally protected subject to reasonable restrictions.

It said that complete blocking or prohibition cannot be accepted by the court and achievement of peace and tranquillity within the erstwhile state of Jammu and Kashmir requires a multi-faceted approach without excessively burdening the right to freedom of speech.

A bench of justices N V Ramana, R Subhash Reddy and B R Gavai said, "We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) (freedom of speech and expression) and Article 19(1)(g) (right to practise any profession, or to carry on any occupation, trade or business)."

The bench said the restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.

It added that in today's world the internet stands as the most utilised and accessible medium for exchange of information but there is a consistent criticism that the development of technology is not met by equivalent movement in the law.

The bench said in a catena of judgments, the apex court has recognised free speech as a fundamental right and "expression through the Internet has gained contemporary relevance and is one of the major means of information diffusion."

Dealing with trade and commerce over Internet, the bench said that the globalisation of the Indian economy and the rapid advances in information and technology have opened up vast business avenues and transformed India as a global IT hub.

"There is no doubt that there are certain trades which are completely dependent on the Internet. Such a right of trade through Internet also fosters consumerism and availability of choice. Therefore, the freedom of trade and commerce through the medium of the Internet is also constitutionally protected," it said.

The top court's verdict came on a plea of Congress leader Ghulam Nabi Azad,  Kashmir Times editor Anuradha Bhasin and others who challenged the restrictions imposed in Jammu and Kashmir post August 5, last year decision of Centre abrogating Article 370.

They had contended that the restrictions under Article 19 of the Constitution cannot mean complete prohibition.

"In this context we may note that the contention cannot be sustained in light of a number of judgments of this court wherein the restriction has also been held to include complete prohibition in appropriate cases," it said.

Referring to the situation of Jammu and Kashmir, the bench said that erstwhile state has been a hot bed of terrorist insurgencies for many years.

Noting the J&K's submission, the top court said that since 1990 to 2019 there have been 71,038 recorded incidents of terrorist violence, 14,038 civilians have died, 5292 security personnel were martyred, 22,536 terrorists were killed.

It added that modern terrorism heavily relies on the internet and the operations do not require substantial expenditure, are not traceable easily and the internet is being used to support fallacious proxy wars by raising  money, recruiting and spreading propaganda/ideologies.

The top court there is no doubt on power of government to restrict under the Constitution but the question is about the extent, the degree of restriction and scope both territorially and temporally which must stand in relation to what is actually necessary to combat an emergent situation.

It said that doctrine of proportionality must be followed by the authorities before passing any order intending on restricting fundamental rights of individuals and they must assess the existence of any alternative mechanism.

"It is undeniable 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," it said.

The top court rejected the contention of J&K administration that they lack technology for providing selective internet access saying if the said argument is accepted then the government would have a free pass to put a complete internet blockage every time.

"Such complete blocking/prohibition perpetually cannot be accepted by this Court," it said, adding, "a decision which curtails fundamental rights without appropriate justification will be classified as disproportionate".

It accepted the contention of Jammu and Kashmir that the internet could be used to propagate terrorism thereby challenging the sovereignty and integrity of India.

"This Court would only observe that achievement of peace and tranquillity within the erstwhile State of Jammu and Kashmir requires a multi-faceted approach without excessively burdening the freedom of speech," it said.