SC on J&K Internet Ban: Freedom of Trade & Commerce through internet is Constitutionally protected, directs Reviewing of Orders (Read Judgement)

A bench comprising of Justices N.V.Ramana, R.Subhash Reddy and B.R. Gavai passed a judgement in case titled as Anuradha Bhasin v. Union of India and Ors.

Petitioner challenged the curbs on the internet, media and also other prohibitions imposed in Kashmir region following the abrogation of the special status of Jammu and Kashmir on August 2019. The internet shutdown in Kashmir, for 150 days which is the longest ever in the world in a democracy.

The bench expounded,

“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) and Article 19(1)(g). 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.”

The Supreme Court stated that the internet is also a very important tool for trade and commerce. The globalization 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 under Article 19(1)(g), subject to the restrictions provided under Article 19(6).

The Supreme Court stated that although substantive justice under the fundamental rights analysis is important, procedural justice cannot be sacrificed on the altar of substantive justice. There is a need for procedural justice in cases relating to restrictions which impact individuals’ fundamental rights as was recognized by the Court in the case of Maneka Gandhi v. Union of India, (1978) 1 SCC 248 and the K. S. Puttaswamy.

Supreme Court quoted from the above Judgements,

“ Non recognition of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of the internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet.”

The Supreme Court directed the Jammu & Kashmir administration to review all the internet shutdown orders within a week. The reviewing should be done as per the rules laid down in the judgment. If fresh orders of shut down are found to be necessary, the law laid down in the judgement should be followed for that, said the top court.   

Read the Judgement: