SC’s judgment on access to internet being a fundamental right pathbreaking: Gopal Subramanium

Senior advocate Gopal Subramanium

NEW DELHI : The Supreme Court (SC) upheld the need to protect constitutional guarantees provided to use the internet and the right to assembly. The verdict came in the backdrop of the five-month long internet shutdown in Kashmir. Senior advocate Gopal Subramanium weighs in the judgement and explains how constitutional protection given to use the internet is a fundamental right and the way forward for people’s rights.

The SC last week gave a landmark judgment on the internet shutdown in Kashmir. What are your first thoughts on the judgment?

I think the first noticeable feature of the judgment is the tremendous concern for constitutional rights in principle. It has been very well written. The judgment carries very valued concepts. There are three concepts which the judgment brings out very clearly. First is the value of liberty, which is so important and un-negotiable. It cannot be put in peril. The second is the importance of knowing things or having access to information and how in today’s world, internet is such an important means of getting information. The access to internet being a fundamental right, I think this is a path breaking decision because the internet is only a means of accessing information. The third part, which I have seen some echoes in earlier judgments of the 1980s, which used to be celebrated judgments on this part. This is a judgment which has a slightly different connotation, although on the same subject, which is on the exercise of statutory powers like Section 144. Are they not meant to be of a limited duration? Can there be a reasonable exercise of their power? If the power is not reasonably exercised, will they not be open to judicial review? How to make sure that they are visible for everybody so that it can be challenged if there be need?

The judgment, according to me, is very seminal, progressive and also not unaware of the societal interests. At the same time, it understands the requirements of protecting society against some parts of itself. Having said that, it strikes a very careful balance between rights and liberty on one hand and the need to protect citizens on the other, through the state. At all points of time, the narrative is the supremacy of the Constitution and the value of human beings. It is a very well written judgment. I was deeply moved by the quotation of Charles Dickens with which the judgment began. It is very strange that the judge quoted Charles Dickens because in some sense the judgment in its own narrative also has the tale of two cities.

This judgement has endowed internet access should be constitutionally protected? What are your thoughts on it?

People have a right to know. When fundamental right to press freedom was treated as a part of Article 19(1)(a), it was not for the freedom of speech of those in the press but also a way for people to gain information from the press. The press and people have always been intertwined for the purpose of information. Over a period of time, information has become the need of the hour. The Right To Information Act was enacted to enable greater transparency. With greater mobility of technology, artificial intelligence and modern algorithmic behaviour, there has to be a catch up with technology as well. This judgement is somewhat farsighted. There are many undercurrents in the judgement.

What according to you will it take to make it into a fundamental right?

It is an incipient right of human dignity and equality before the law. This right will also play out itself like any other fundamental right, subject to restrictions. What restrictions will be reasonable, the Justice Nariman’s judgement in Shreya Singhal case, which was a major decision where he says a free market place of ideas is so important for society. It is also somewhere echoed in this judgement.

The judgement is not questioning the right of the government but the extent of the government to shut down internet. It has also made a shut down subject to judicial review. Do you think the judgement is balanced? Or does it transgress into the powers of the government?

This judgement has not transgressed into the powers of the government. The judgement towards the end follows a very celebrated judgement of the 1980s, which was authored by Justice A P Sen. In that case, the judgement goes that the court can say that the records are not sufficient but there is a mandamus for you to review your actions. The court said that if you still want to publish any order under article 144, make sure it is done transparently for people to know and with a possibility of a challenge to those orders. It is not a transgression on the domain of the executive. On the contrary, the judgement reflects all the submissions of the government noted, taken into account and a very balanced conclusion being brought in.

The court held that orders under S-144 Cr.PC for suspension need to be published to enable the affected person to challenge it. How important do you think is this decision for transparency?

This judgement gives people a very strong sense of locus poenitentiae about their rights – that is people are not simply constrained. They have now a capability of how they are being constrained, why, under what law and they have access to a judicial review.

The judgement speaks of a chilling effect in the context of freedom of the press. What is your take in explaining the parameters of establishing a chilling effect with respect to freedom of press?

This is very important. This is a constitution theme that – fearlessness is the hallmark of dignity, fearlessness of thought, access to ideas and debate – are all a part of the constitutional ethos. It is also a part of the Indian ethos, they always give root for research and debate. We always had certain degree of aptitude for research and debate, both inward and outward. Now chilling affect is when the enormous spontaneous being of citizens who want to be in touch with ideas, speak out ideas, debate ideas and are simply robbed of that spontaneity and are ushered into a state of fear. Now this concept of chill state is vital for the democracy. In a democracy, which is formed of fraternity, equality, republic like India, This is vital because people are more important components and the people must always live freely and in a state of fearlessness. The judgment, therefore, once again emphasises that the spirit of the constitution is always to enable a state of calm fearless, a fearlessness, which is not unrested fearlessness but a calm fearlessness where you are able to speak and where you are able to experience the knowledge of ideas.

In recent times, we have seen the court increasing the frontiers in most cases. For example, the Sabarimala case. How do you see it?

A court is a dynamic organism. No judicial thought can ever be stagnant. If it is stagnant, it will not be alive to the sensibilities of a mobile society. As a society we are never static. There can be different social movements. In some cases, when judges take different views is only very healthy for the purpose that different views can be expressed in the same institution, which contradict each other. Jurisprudence is all about narratives of profound thinking. The uniqueness of judges notwithstanding the fact they belong to a common institution lies in their personal skills and their logical skill sets, which they bring to bear for analyzing a particular problem. There is one other point which I needed to mention, India perhaps is one country of which the judiciary is a great example for allowing comparative law to be always available to it for reference. Even in Pakistan, many of the latest recent judgments of Pakistan Supreme Court reflects a similar openness to comparative law. But India has always taken the lead in looking at comparative law but apart from comparative law that is the judgments rendered in other jurisdiction, there is a tremendous upsurge of interest in academic freedom. So academic writings in law have now been taken into account and they have been used in great success in carving out new concepts in constitutional morality, constitutionalism, constitutional spirit and constitutional culture. So there are new tools now available to the court and the court does not feel inhibited by the fact that it is known as a well known author, writing a book. But the important thing is that the court is thirsty for knowledge from whichever source it can get. There the internet and online resources, which the court has greatly helped it. Apart from that, if you look at the hot cover books, many judgements you can see are based on the hot cover books but many are also based at the considerable degree of online research. The quality of academic writing is also becoming increasingly much higher in terms of quantity. Earlier legal writing was somewhat restricted but now legal writing has gone up by metes and bounds.

For a judgement like this what do you see the way forward. What actions can be taken by the government?

I believe that the government will respect judgments of the court. I think that we are in an era where the government also understands that importance of judgements and thoughts, which are expressed. We should always have a very very strong hope that governments are positive. If we are not of that strong opinion that governments can change their views, that the government can review their decision, that governments can progressively act in a manner, then we are also not helping the growth of our own society. This is nothing to do with any political colour, in principal, we must have an understanding of the dynamics of the government. If the government is fixated as of some kind in our mind, then we are incorrect. But if we give the government the ability and the respect so that they also can hear and listen, I always feel that a dialogically foreword or thrust is possible. A dialogical thrust is perhaps the best way to govern, way by which there is, even consense after a speech is a very good way to govern. I mean, these are all ideas, we are still in the realm of ideas but we are also in the realm of human beings and human condition matters to all of us including the government. We have to, therefore, view this in some sense as a common purpose.