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Anuradha Bhasin vs Union Of India (AIR 2020 SC 1308)

Case Comment, Publications

PETITIONER: ANURADHA BHASIN AND ORS.

RESPONDENT: UNION OF INDIA AND ORS.

Bench: Hon’ble Justice N.V Ramana, Hon’ble Justice R. Subhash Reddy, and Hon’ble Justice B.R. Gavai

INTRODUCTION: FACTS 

On August 4, 2019, all Internet communications were suspended in Jammu and Kashmir. The Government implemented a total blackout of communications, which included the suspension of landline, mobile, and internet services. The District Magistrates put additional limits on freedom of movement and public assembly under Section 144 of the Crpc. From the morning of 05−08−2019 with a heavy military presence, barricades and severance of all communication links, the state of Jammu and Kashmir was placed under de facto curfew that followed the revocation of J&K’s special status under Article 370 of the Indian Constitution.

The petition W.P. (C) No. 1031 of 2019 was filed by Ms Anuradha Bhasin. She was the executive editor of the Kashmir Times Srinagar Edition, who argued that the Internet was essential for the modern press. The petitioner’s argument was about the failure of the Government to give a valid reason for passing such an order as required in Suspension rules.

Another petition W.P. (C) No. 1164 of 2019, was filed by Member of Parliament, Mr Ghulam Nabi Azad, whose contention was that the state could not claim any privilege before the Court for not producing such orders. Additionally, he stated that a national emergency could only be declared in a handful of cases, whereas in this case, neither internal nor external disruption exists. The case, known as Anuradha Bhasin vs Union of India, was heard by the Supreme Court of India. The judgment, delivered on January 10, 2020, has far-reaching implications for Internet governance in India.

ISSUES RAISED 

  1. Can the Government claim an exemption or be allowed to bar from producing orders passed under Section 144 Crpc and other orders under Suspension rules?
  2. Whether the freedom of speech and expression, freedom to practice any profession or to carry out any trade, occupation or business over the Internet is a part of Fundamental Rights enshrined under Part III of the Constitution of India?
  3. Whether the Government’s decision to restrict access to the Internet is valid?
  4. Was the restriction imposition under Section 144 of Crpc valid?
  5. Was the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 violated due to the restrictions?

CONTENTIONS 

Contention On behalf of the petitioners 

The case of Anuradha Bhasin vs Union of India revolves around the issue of internet shutdowns in India.

  1. The petitioner argued that the frequent shutdowns of the Internet and mobile services in Jammu and Kashmir violated several fundamental rights, including the right to freedom of speech and expression, the right to education, the right to healthcare, and the right to livelihood. The petitioner pointed out that the shutdowns severely impacted the region’s economy and caused immense hardships to the people.
  2. The counsel argued that the orders lacked mental application and were inconsistent with the suspension guidelines and the Government of National Telecom Policy, 2012.
  3. The petitioner argued that the restrictions imposed on communication were unconstitutional and violated the principles of natural justice. The petitioner pointed out that the Government had not provided any valid reasons for the restrictions and had not followed the due process of law.
  4. The counsel submitted that the restrictions should be laid following the test of proportionality as held in the case of K.S Puttaswamy vs. Union of India[1].
  5. The petitioner argued that the right to access information is a fundamental right and that any restrictions on the flow of information violate this right. The petitioner pointed out that the Government had blocked several websites and social media platforms, preventing people from accessing information and expressing their opinions freely.
  6. The counsel argued that restrictions under Section 144 of the Criminal Procedure Code are imposed in cases of law and order situations. Still, the orders imposed did not suggest any law and order issue. As a result, Orders under Section 144 should be based on factual evidence rather than guesswork.

Contention on behalf of Respondents

  1. The subject of national security was one of the respondents’ primary arguments. According to the Union of India, restrictions were essential to uphold regional peace and order and combat terrorist activities. The administration said that the media restrictions and communication shutdown were implemented to stop the spread of rumours and false information that would encourage unrest and violence in the area.
  2. Respondents further contended that the usual free speech standard could not be applied to the Internet because it is so vast, opens up two-way communication through engagement on social media, and the dangers of the dark web.
  3. After knowing the ground situation in their respective jurisdictional areas, the counsel submitted that the Magistrates passed orders under Sec.144, Crpc. They added that the absence of restrictions in the Ladakh region and the imposition of restrictions based on threat perception in other regions indicate the application of the mind. The counsel argued that the restrictions passed aligned with the suspension rules.
  4. The counsel contended that the petitioners were incorrect in stating that public movement was restricted as there was no restriction on individual movement.
  5. It was submitted that just a few select websites could not be targeted, but instead, the Internet as a whole was shut down. Lastly, they also argued that the claims made on the stringency of the restrictions were grossly exaggerated.

JUDGEMENT AND RATIONALE 

ISSUE 1

The petitioners asked the Government to provide all orders, notifications, and directions that the relevant authorities had issued regarding the restriction of internet and communication services in Jammu and Kashmir. However, under the Right to Information, Act of 2005 Section 8(1)(a), the Government claimed an exemption. The Court ruled that the Government’s request for an exception was invalid since no rationale was offered. The Court agreed with the petitioners, stating that “the orders issued under the suspension of telecom services rules must adhere to the principle of proportionality and be published for the public to know.” The Court directed the Government to place all the orders and notifications before the review committee. Specifically, in para 96 of its Judgement, the Supreme Court held that the Government must proactively publish all internet shutdown orders.

ISSUE 2

The petitioners contend that the restrictions imposed on internet and communication services in Jammu and Kashmir infringed their fundamental rights protected by the Constitution’s Articles 19(1)(a) and 19(1)(g). The Court stated that the right to free speech and expression includes the ability to express oneself online. The Court also ruled that Article 19(1)(g) protects the freedom to conduct any trade or activity through the Internet. Therefore, the Court declared that the Government’s action of imposing restrictions on the Internet and communication services violated the petitioners’ fundamental rights under Article 19(1)(a) and Article 19(1)(g). However court 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.[2]

ISSUE 3

The Court held that it had to consider procedural and substantive elements to determine the Constitutional Legality of the internet shutdown. Section 5(2) of the Telegraph Act permitted suspension orders only in case of public emergency or for public safety. Although for passing such an order, a determination of emergency is required, which did not satisfy this case. The Government cannot impose a complete ban on internet access as it violates the fundamental rights of citizens. Any restriction on internet access must be reasonable, proportionate, and necessary to achieve a legitimate aim, and must not extend beyond necessary duration. The court direct the respondent State/competent authorities to review all orders suspending internet services forthwith. Further, court said that in future, if there is a necessity to pass fresh orders, the law laid down herein must be followed.

ISSUE 4

The petitioners argued that restricting movement under Section 144 of the Crpc was unconstitutional and arbitrary. In its ruling, the Court stated that the authority granted by Section 144 might be used “not only when there is a present threat, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an ’emergency’ and to prevent obstruction, annoyance, or injury to any lawfully employed person[3]. The power cannot be used to suppress free speech and should only be applied where there are substantial grounds for doing so and are subject to judicial review. Thus, the Court ordered the State to review its restrictions.

ISSUE 5

The Court began by highlighting the importance of freedom of the press in modern times. In this particular case, the Court finds it impossible to determine whether the claim of a chilling effect is valid because the petitioner failed to present any evidence demonstrating the restrictions on press freedom. As the petitioner resumed publishing newspapers, the Court rejected the plea after ensuring freedom of the press in the locality.

DEFECTS OF THE LAW 

The Court did not offer immediate relief to those affected by the orders by lifting restrictions on internet access and mobility, but it did establish parameters for future suspension orders.

The Anuradha Bhasin vs Union Of India decision’s lack of clarification about the proportionality test was one of its primary legal flaws. According to the proportionality test, any restriction on fundamental rights must be reasonable in relation to the harm it intends to avoid. Despite acknowledging the existence of the proportionality test, the Supreme Court failed to use it in the current case. Thus, the Court needed to sufficiently consider how internet shutdowns would affect the right to free speech and expression.

According to the Supreme Court, internet shutdowns should only be used as a last option for the shortest duration possible. The Court did not, however, provide any clarification as to what constitutes the “shortest duration possible.” Due to the absence of clarity, the Government can keep imposing extended internet shutdowns.

The judgment focused primarily on the impact of internet shutdowns on freedom of speech and expression without adequately addressing their impact on economic and social development.

The lack of clarity on the proportionality test and the duration of internet shutdowns could also lead to arbitrary and excessive restrictions on freedom of speech and expression.

INFERENCE: CONCLUDING REMARKS 

The Judgement has set a landmark legacy that has strengthened the protection of fundamental rights on the Internet. The verdict has provided a framework for courts to assess the legality of internet shutdowns. In the current socio-cultural dynamics, it has supplied a long-drawn course. Unlike print media, the Internet has become an essential instrument for spreading the news, both necessary and unnecessary for the two-way transmission of information.

The Judgement reaffirms the importance of fundamental rights in a democracy and highlights the need for the Government to balance the right to free speech with the need to maintain law and order. The Judgement also highlights the importance of access to the Internet in today’s digital age, and governments must ensure that any restrictions placed on it are reasonable and appropriate.

This case provided a ray of hope in the darkness of times, where the right to the Internet is as fundamental as any other right, especially in as Socio-global village we reside, setting a precedent for growth and opportunities arising out of the right to the Internet and preserving the democratic nature of the country.

References:

  1.  Indian Kanoon – https://indiankanoon.org/doc/82461587/
  2. Legal Services India: https://www.legalserviceindia.com/legal/article-6840-anuradha-bhasin-v-s-union-of-india-case-analysis.html
  3. Global Freedom of Expression: https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/
  4. Ipleaders: https://blog.ipleaders.in/anuradha-bhasin-v-union-of-india-case-analysis/

Ab Wahid Lone

Central University Of Kashmir

[1] K.S Puttaswamy vs. Union of India (2017) 10 SCC 1

[2]para. 152

[3]para. 140