Internet and Freedom of expression
Is government empowered enough to curb voice of its citizen
at the awake of Sec144 Cr.PC over
internet and social media. A brief explanation of freedom of speech and
expression and sec 144 Cr.PC (curfew)
ANURADHA BHASIN VS U.O.I..
Supreme Court Of India. 10 January, 2020
A three judge bench of supreme court of India affirmed that the right to freedom of speech and expression as guaranteed to all citizen under the first section of the article , covers the right to go online.
"We declare that freedom of speech and expression and the freedom to practice any profession or carry any trade or business or occupation over the medium of internet enjoys constitutional protection under 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 power under Section 144, Cr.PC
cannot be used to supress legitimate expression of opinion or grievance or
exercise of any democratic rights.
Do it apply to freedom of speech and expression on social media?.
Which level of protection should be provided for the
communicative sphere of cyberspace ?
Section 144 in The Code Of Criminal Procedure,
1973
144. Power to issue
order in urgent cases of nuisance of apprehended danger.
1) In cases where, in the opinion of a District
Magistrate, a Sub- divisional Magistrate or any other Executive Magistrate
specially empowered by the State Government in this behalf, 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 with
respect to certain property in his possession or under his management, if such
Magistrate considers that such direction is likely to prevent, or tends 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, of an affray.
2) An order under this section may, in cases
of emergency or in cases where the circumstances do not admit of the serving in
due time of a notice upon the person against whom the order is directed, be
passed ex parte.
3) An order under this section may be
directed to a particular individual, or to persons residing in a particular
place or area, or to the public generally when frequenting or visiting a
particular place or area.
4) No order under this section shall remain
in force for more than two months from the making thereof: Provided that, if
the State Government considers it necessary so to do for preventing danger to
human life, health or safety or for preventing a riot or any affray, it may, by
notification, direct that an order made by a Magistrate under this section
shall remain in force for such further period not exceeding six months from the
date on which the order made by the Magistrate would have, but for such order,
expired, as it may specify in the said notification.
5) Any Magistrate may, either on his own
motion or on the application of any person aggrieved, rescind or alter any
order made under this section, by himself or any Magistrate subordinate to him
or by his predecessor- in- office.
6) The State
Government may, either on its own motion or on the application of any person
aggrieved, rescind or alter any order made by it under the proviso to sub-
section (4).
7) Where an
application under sub- section (5) or sub- section (6) is received, the
Magistrate, or the State Government, as the case may be, shall afford to the
applicant an early opportunity of appearing before him or it, either in person
or by pleader and showing cause against the order; and if the Magistrate or the
State Government, as the case may be, rejects the application wholly or in
part, he or it shall record in writing the reasons for so doing. D.- Disputes
as to immovable property.
Article 19 , The Constitution Of India 1949
''Protection of
certain rights regarding freedom of speech etc''
All citizens shall have the right
a). to
freedom of speech and expression;
b). to
assemble peaceably and without arms;
c). to
form associations or unions;
d). to
move freely throughout the territory of India;
e). to
reside and settle in any part of the territory of India;
f). ---------------.
g). to practice
any profession, or to carry on any occupation, trade or business
(2)Nothing in sub clause (a) of clause ( 1 ) shall affect the
operation of any existing law, or prevent the State from making any law, in so
far as such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub clause in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign
States, public order, decency or morality or in relation to contempt of court,
defamation or incitement to an offence
(3)Nothing in sub clause (b) of the said
clause shall affect the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order, reasonable restrictions on
the exercise of the right conferred by the said sub clause
(4)Nothing in sub clause (c) of the said
clause shall affect the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order or morality, reasonable
restrictions on the exercise of the right conferred by the said sub clause
(5)Nothing in sub clauses (d) and (e) of
the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, reasonable
restrictions on the exercise of any of the rights conferred by the said sub
clauses either in the interests of the general public or for the protection of
the interests of any Scheduled Tribe
(6)Nothing in sub clause (g) of the said
clause shall affect the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the right conferred
by the said sub clause, and, in particular, nothing in the said sub clause
shall affect the operation of any existing law in so far as it relates to, or
prevent the State from making any law relating to,
i) the
professional or technical qualifications necessary for practicing any
profession or carrying on any occupation, trade or business, or
ii) the
carrying on by the State, or by a corporation owned or controlled by the State,
of any trade, business, industry or service, whether to the exclusion, complete
or partial, of citizens or otherwise.
Now how can a citizen know that the appointed ministers are using the resources which is for the state development. There comes the mass destructive weapon RTI- an applicant under sec 6 of RTI act can get any information which is already in existence and accessible to the public authority.
The sole object of RTI act is to provide clarity of information to the citizen of India, to curb corruption and to promote accountability in the working of every public sector.
"An enlighten citizen makes an enlighten Nation"
To what extent a citizen enjoys freedom on cyber space has always been tested in court. The arrest of social activists and people who question the state functionality has been tested every now and then. we have a democratic framework which means a Govt by the people, for the people and to the people. The word people seems missing whenever it comes to freedom of speech and expression. The famous trial of Mr.Tilak in Bombay court is a classic example where the charge of sedition on Mr. Tilak was held just and fair under English regime, seems like the way we adopted English law, the same we have adopted there policy of ruling a state.Freedom from one tyrant to another / Levithan.
Discliamer:
The material and view is prepared by Adv Bishwa Kumar Jain and is the
result of personal knowledge and have no legal value. The information and views
are not intended to create, a legal relationship or advertisement. The reader
should not rely or act upon this information without seeking professional
counsel or legal advisor or an Advocate. The author shall not be responsible
for any loss in any way what so ever and in any manner.
Advocate:
Bishwa Kumar Jain
#
9582584584
B
com (h). L.L.B. DIP Cyber Law. Member International Arbitration U.K. Practice Advocate Supreme Court and High
Court of Delhi.
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