INTRODUCTION
Anuradha Bhasin v. Union of India[1] is a the Supreme Court case that arose after the Indian government disannulled Article 370 which ended Jammu and Kashmir’s special status.[2] After the invalidation of Article 370, there was implication of severe restrictions such as restriction on internet accessibility, restrictions on freedom of movement and assembly, and general restrictions across the region, all in August 2019. The case was brought by a journalist, Anuradha Bhasin, who challenged the legitimacy and indigenous validity of the restrictions placed upon Jammu and Kashmir, especially on freedom of speech, freedom of the press, and freedom of movement under Articles 19 and 21 of the Indian Constitution.[3]
FACTS OF THE CASE
On August 5, 2019, the Government of India abrogated Article 370 of the Constitution which ended the special status of the State of Jammu and Kashmir, fully assimilating Jammu and Kashmir into the Indian Union.[4] The government was of the view that there would be law and order disruptions and unrest in the state as a result of the constitutional change, and imposed a variety of severe security and public order restrictions in the region.
Just before the abrogation, on August 4, 2019, the Civil Secretariat, Home Department, Jammu and Kashmir, released a security advisory directing tourists, pilgrims, and others visiting the valley to go back home at the earliest opportunity. All educational institutions and government offices across Jammu and Kashmir were ordered to be closed. On the night of August 4, 2019, telecommunication and internet services across Jammu and Kashmir were withdrawn.
The next day, August 5, 2019, the President of India issued Constitutional Order No. 272, extending all parts of the Indian Constitution to Jammu & Kashmir and removing its special status.[5] Further, the District Magistrates of the region imposed Section 144 of the Code of Criminal Procedure (CrPC), which restricted public movement and public gatherings of more than four persons.[6] The broad application of this legal provision was to limit public gatherings and restrict civilian movement and justified on the public interests of preventing protests, violence, or disorder.
The overall effect of these actions was an absolute communications blackout and a severe restriction on physical movement. Journalists including Anuradha Bhasin, who was the Executive Editor of the Kashmir Times, were restricted to publish, circulate or to gather news for their newspapers due to the communications blockade and the physical restrictions. The press was severely disrupted as these actions directly prevented the press from reporting, presenting information, and carrying out daily operations.
LEGAL ISSUES RAISED
1. Freedom of Speech and Press: Whether shutting down the Internet and other forms of communication violated fundamental rights to freedom of speech/expression and press guaranteed under Article 19(1)(a)?[7]
2. Right to Carry on Business: Whether the suspension of internet services violated the right to carry on trades/professions guaranteed under Article 19(1)(g), given the reliance on digital communication for modern commerce?[8]
3. Proportionality and Legality: Whether restrictions were proportionate to the conditions prevailing based on concrete evidence, or were they arbitrary and excessive?
4. Requirement for Transparency: Whether it was necessary for the government to disclose all orders publicly?[9]
CONTENTIONS OF THE PETITIONERS
1. Violation of Fundamental Rights
The petitioners argued that the suspension of internet and telecommunications services without any time of review and without any sufficient time limit, would violate their fundamental rights recognized in Articles 19(1)(a), 19(1)(g) and 21 of the Constitution.[10] They noted that access to the internet is recognized under free speech, press freedoms, and commerce today.
2. Press Freedom and right to access information
The petitioners argued that presently journalists use the internet as a source of obtaining news, publishing stories, and disseminating content. The suspension of internet services affected press freedoms by shutting down this communication benefit. The petitioners argued the restrictions were unconstitutional because neither were they proportionate nor reasonable.[11]
3. Failure to follow transparent and procedural safeguards
The petitioners pointed out in the petition that as many of the orders concerning restrictions were not available publicly, it made it difficult to properly dispute the orders in court and that all of this contradicted fundamental principles of natural justice and transparency. [12]
4. Disproportionate and indefinite restrictions
The petitioners noted that the suspension of internet and communications services was complete, indefinite, and tantamount to a sliding scale of disclosures that were so minimal they were completely unacceptable in relation to a business and trade environment, thus constituting a drastic deviation from normalcy, exceedingly disproportionate and weakly justifiable, all at the expense of people’s well-being and subjective loss of livelihoods.[13]
CONTENTIONS OF THE RESPONDENTS
- Justification Based on National Security and Public Order
The government argued that the restrictions were necessary to prevent disturbance of public order, terrorism and violence as Jammu and Kashmir had a history of militant and terrorist threats.
- Temporary and Targeted Restrictions:
The government said the restrictions were temporary and targeted to specific areas as the areas had been deemed sensitive for security reasons, and that some relaxations had been in place and with time, the government was able to reinstate some mobile and landline services.
- Limited Scope for Judicial Intervention
The Solicitor General argued that questions of national security and public order are almost entirely questions of executive and administrative discretion. The courts should show restraint in their exercise of jurisdiction when it comes to state action based on national security and public order, and the national security would not be efficient if there was excessive judicial interference based on standard principles.
- Internet as a Double-edged Sword
The government promoted the idea of risks associated with social media and the internet, stating that online communication was responsible for the spread of rumours and fake news; incitement to violence; terrorist groups being able to communicate and procurement of weapons via the hidden “dark web”. This justified the government’s position in restricting the internet as a security measure.[14]
- No Total Restriction on Movement
The government defended its view that while individual movement was not unrestricted at all times and places, the existing orders were compliant to customary practice to incite individual movement and to prevent public assemblies or gatherings during sensitive times. These assertions framed the critical legal contest in front of the Supreme Court.
RATIONALE
• Digital Rights Recognition: The judgement is historic because it provided recognition of access to the internet as a constitutionally protected right, thereby increasing the reach of Article 19.
• Press Freedom: The Court reiterated the importance of unhindered press operations to support democracy and assured that authorities were required to facilitate press freedom, despite the limitations provided by law.[15]
• Precedents for Future Shutdowns: Provided limits on the authority of the government to shut down the internet, mandating government transparency, judicial oversight and time-limited review.
• Limits: Since the ruling did not compel the restoration of any services by any means, it some must establish processes by which the government could affirm, or remove, existing illegal restrictions on the press.[16]
DEFECTS OF LAW
- Indefinite and Blanket Communication Shutdown
The government put a ban on all telecommunication and internet services, including landline, and mobile services, in Jammu and Kashmir, with no specified duration and no adequate provision of review, which resulted in an indefinite communication blackout. This violated the legal standard that requires restrictions on fundamental rights to be temporary, necessary, and proportionate, and regularly reviewed for arbitrariness.[17]
- Transparency, Non-publication of Orders
The key orders restricting communications under the Telegraph Act and Section 144 CrPC were never published, limiting the affected citizens and journalists from being informed of the specifics of the authorities’ powers under which the restrictions were imposed, or the opportunity to make an application challenging the orders in court.[18] The failure to publish orders violated the rule of law, natural justice and accountability..
- Overbroad and Disproportionate Restriction Without Legitimate Basis
The restrictions were overly broad and extended to all communications channels, while also imputing restrictions on movement, even though many of those affected by the actions were innocent. The government’s assertion had purported security related motives, when their basis practically speaking, constituted mainly an apprehension. The proportionality test expects that any means employed must have the least restrictive, narrow conception of “proportionate action”.
- Ambiguity in the Use of Section 144 and Legal Authority
The invocation of Section 144 CrPC was widespread and without clear evidentiary material of immediate or imminent risk. The Court was clear that Section 144 must not be used, except in cases of real emergency, as a means of oppressed legitimate expression and public gathering; moreover, even to the extent of statutory restrictions, it was difficult to ascertain the legal limits and safeguards of such use, with the government invoking broadly, the energies of this section.[19]
- Judicial scrutiny or an Insufficient Review of Executive Action
Despite the Supreme Court outlining functionality of a review of actions and transparency requirements, it was glaringly clear that the Supreme Court exercised minimal, if any judicial scrutiny or substance to review either the necessity, or proportionality of each restriction order. Instead, it allowed the agencies involved to refer their adjudication question to executive review committees, which poses a range of concerns for the exercise of executive power which could potentially be unchecked and subjected to subsequent misuse.
- Disregarding Technological Realities in Justifying Total Shut Down
The government argued that it was technically impossible to selectively block harmful content given its scope; the Court found that a technical incapacity is an inadequate justification to allow a total deprivation of a right, which clearly justifies access to less restrictive means.
INFERENCE
The Anuradha Bhasin judgement represents a significant judicial endorsement of the view that the internet, and access to the internet, is a right that is encompassed within freedom of speech, expression and the right to carry on business, enshrined in the Constitution. It establishes some important benchmarks in law that require the State to ensure that any restriction of such rights, in particular in conflict- and violence-prone regions, is ‘legitimate’, ‘proportionate’ and subject to transparency and periodic review. But there are also apparent tensions in the case which highlight the difficulties in countering national security interests with civil liberties in an increasingly digitalised world, and it has revealed some striking flaws in legal frameworks which facilitate executive overreach when national security claims are invoked.[20]
Although the Supreme Court’s instructions do offer greater safeguards, the flagrant absence of legislative provisions which would apprehend that in some cases of unlawful assembly and emergency action, a government may decide to implement restrictions even in partial form, and the inability to design weapons, by designing in selectivity, requires a thorough rethinking in terms of safeguards. Ultimately, Anuradha Bhasin case reinforces the basic principle that human rights in a democracy should not simply be suspended under the blanket of security, without proper safeguards and judicial scrutiny.[21]
NAME OF AUTHOR- Goranshi Gupta
COLLEGE- Trinity Institute of Innovations in Professional studies, Greater Noida.
[1] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 (India).
[2] The Constitution of India art. 370 (1950).
[3] The Constitution of India art. 19, 21.
[4] Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272).
[5] Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272).
[6] The Code of Criminal Procedure, 1973, §144 (India).
[7] The Constitution of India art. 19(1)(a).
[8] The Constitution of India art. 19(1)(g).
[9] iPleaders, Case Analysis: Anuradha Bhasin vs Union of India (2020), https://blog.ipleaders.in/anuradha bhasin-v-union-of-india/.(last visited July 24, 2025).
[10] The Constitution of India art. 19, 21.
[11] Majmudar & Partners, Landmark Supreme Court Judgment in Anuradha Bhasin v. Union of India (2020), Majmudar & Partners Blog, https://www.majmudar.in/blog/landmark-supreme-court-judgment-anuradha-bhasin/ (last visited July 24, 2025).
[12] Id.
[13] Shutdown: The Shutdown Case, Yale L.J. (2020), https://www.yalelawjournal.org/ (last visited July 24, 2025).
[14] Majmudar & Partners, Landmark Supreme Court Judgment in Anuradha Bhasin v. Union of India (2020), Majmudar & Partners Blog, https://www.majmudar.in/blog/landmark-supreme-court-judgment-anuradha-bhasin/ (last visited July 24, 2025).
[15] American Civil Liberties Union, https://www.aclu.org (last visited July 24, 2025).
[16] Insights on India, https://www.insightsonindia.com (last visited July 24, 2025).
[17] Bhasin v. Union of India, Global Freedom of Expression, Columbia U., https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/ (last visited July 24, 2025).
[18] Id.
[19] Shrutanjaya Bhardwaj et al., Rising Internet Shutdowns in India: A Legal Analysis, 16 Indian J.L. & Tech. 122 (2020), available at https://repository.nls.ac.in/ijlt/vol16/iss1/7/.
[20] IP and Legal Filings, https://www.ipandlegalfilings.com (last visited July 24, 2025).
[21] Indian Kanoon, https://indiankanoon.org/ (last visited July 24, 2025).