Anuradha Bhasin v. Union of India- AIR 2020 SC 1308.

Case Commentary

FACTS

• Jammu and Kashmir is an Indian region that borders Pakistan and has been the source of decades of conflict between the two nations. The area had unique status under Article 370 of the Indian Constitution, had its own Constitution, and Indian nationals from other states were not permitted to own land or property there. On August 5, 2019, the Indian Government issued the Constitution (Application to Jammu and Kashmir) Order, 2019, which removed Jammu and Kashmir of its special status that it has enjoyed since 1954 and put it completely subject to all sections of the Indian Constitution.
• The Indian government began restricting internet communication and freedom of movement in the days preceding up to this Constitutional Order. Tourists and Amarnath Yatra pilgrims were urged to leave India’s Jammu and Kashmir region on August 2, according to the Civil Secretariat, Home Department, Government of Jammu and Kashmir. Schools and workplaces were then instructed to stay closed till further notice. On August 4, 2019, the region’s mobile phone networks, internet services, and landline access were all cut off. The District Magistrates placed new limits on freedom of movement and public assembly, citing Section 144 of the Criminal Penal Code as the authority.
• Journalists’ ability to travel and write was hampered by the internet shutdown and mobility restrictions. As a result, they were challenged in court for violating Article 19 of India’s Constitution, which guarantees the right to free expression. In this regard, the Supreme Court of India considered the petitions, which questioned the constitutionality of the internet shutdown and mobility restrictions.[1]

ISSUES RAISED

• Whether it Is possible for the government to seek an exemption from submitting all orders issued under Section 144 of the CrPC and other orders issued under the Suspension Rules?
• Whether freedom of speech and expression, as well as the freedom to practise any profession or carry on any occupation, trade, or business on the Internet, part of the fundamental rights guaranteed by Part III of the Constitution?
• Whether the government’s effort to limit internet access legal?
• Whether the limits imposed under Section 144 of the CrPC were legally valid?
• Whether the Petitioner’s press freedom in W.P. (C) No. 1031 of 2019 been infringed as a result of the restrictions?[2]

CONTENTION

Petitioner’s Arguments

W.P. (C) No. 1031 of 2019

• Ms. Anuradha Bhasin, executive editor of the Kashmir Times Srinagar Edition, filed a petition claiming that the internet is essential for the press and that its absence has resulted in the halting of print media activities. The government failed to present a valid basis for the internet shutdown, and the orders were simply based on concerns about potential law and order difficulties. An intervenor emphasised the need of balancing national security and people’ rights by mentioning several court instances. They also criticised the limits for going beyond their initially stated transitory nature. Another intervenor emphasised the need of investigating the facts surrounding the orders and making those orders available to the public. They emphasised the importance of a proportionality test in light of the widespread concern.

W.P. (C) No. 1164 of 2019

• Mr. Ghulam Nabi Azad, a Member of Parliament, filed a case claiming that the state cannot claim any exemption or privilege in order to delay judicial decisions. He said that a national emergency may only be proclaimed under limited circumstances, and that there were no “internal disturbances” or “external aggressions” in the current scenario to justify an emergency declaration. To issue an order under Section 144 of the Criminal Procedure Code, a true “law and order” situation is required, which was lacking in this case, both in terms of actual concerns and apprehension. Individuals or organisations producing potential disruptions should be targeted with restrictions rather than the entire state. The state must implement the least restrictive regulations possible while maintaining a balance between citizens’ basic rights and public safety. Imposing internet limitations not only restricts freedom of expression and communication, but also the ability to engage in any trade, profession, or vocation.

W.P. (Crl.) No. 225 of 2019

• Although the suit was abandoned during the arguments, the petitioner claimed that the limits imposed were harmful to even law-abiding residents, which was subsequently disproved by India’s Attorney General and Solicitor General.

Respondent’s Arguments

Mr. K.K. Venugopal, Attorney General for Union of India

• The Attorney General stated that the history of terrorism in Jammu and Kashmir must be considered. He contended that before issuing the injunction, “the cognizance of the problem in the state” must be considered. Knowing about cross-border terrorism and domestic militancy, it would be irresponsible not to take any precautionary precautions. Knowing the history, if the government does not take action, there might be widespread bloodshed. When a terrorist was murdered in 2016, same steps were used.

Mr. Tushar Mehta, Solicitor General of Jammu and Kashmir

• According to the Solicitor General, the basic role of the state is to protect its inhabitants, and given the history of Jammu and Kashmir, limits were required. Physical and digital cross-border terrorism both pose risks. Individual movements were not prohibited, and the limits were gradually loosened based on the conditions of the region. Magistrates’ orders under Section 144 of the CrPC were based on their understanding of the case. As indicated by the easing in Ladakh, there is no universal crackdown. Restrictions are preventative in character and are warranted for citizen and state safety. To prevent the propagation of violent messages, social media controls are required. The internet restriction is necessary to combat bogus news and illicit activity. Newspapers and the internet are treated differently.[3]

RATIONALE

Issue 1

• The court ruled that the state must disclose the order imposing limits to the court. It cited the case of Ram Jethmalani v. Union of India to emphasise the need of revealing information in writ petitions. The court emphasised that openness and accountability are essential in a democracy, and that citizens have a right to know. It argued that the state cannot make laws secretly based on mere fear of risk. The court cited James Madison, who stated that a government that does not have access to popular knowledge is ineffectual. It found that, save in circumstances of exceptional privilege or countervailing public interest, the court should proactively order the production of orders, with the court determining on a case-by-case basis. The state’s original claim of privilege, as well as the later difficulties in obtaining all orders, were found invalid reasons for the order to be withheld. The court emphasised the importance of maintaining basic rights, which should not be overlooked.

Issue 2

• According to Article 19(1)(a) of the Constitution, freedom of speech on the internet is a fundamental right. It emphasized the need for appropriate constraints that serve legitimate interests such as national security and public order. The court weighed the state’s geopolitical circumstances, as well as terrorists’ reliance on the internet. It cited US legal precedents on restrictions on free expression during times of war and encouragement to violence. The court emphasized the proportionality concept and the necessity to balance competing rights. It dismissed the state’s assertion that selective internet access is technologically impossible and emphasized the need of maintaining peace without unduly restricting freedom of speech.

Issue 3

• The court emphasized procedural justice as well as the two-tiered system for internet restrictions: contractual and statutory. It was clear that legislative constraints were more significant in this situation. The government’s reasoning for internet shutdowns under Section 69A of the IT Act was rejected by the court since it only applies to select websites, not the entire internet. The court considered the competent authority responsible for issuing suspension orders and the necessity for approval by the competent authority in “unavoidable” situations in relation to the Suspension Rules under the Telegraph Act. The court emphasized the importance of reasoned orders being provided to the Review Committee in accordance with the regulations. The court cited past decisions and interpretations, holding that a suspension order must be based on a “public emergency” or be “in the interest of public safety.” It was said that the order should be made public for the interest of natural justice. The court also emphasized the lack of a limit period for suspension orders and ruled that indefinite suspension was unconstitutional, ordering the Review Committee to decide an appropriate timeframe. Finally, because not all orders were filed to the court, the relief granted was modified proportionately.

Issue 4

• The court stressed that Section 144 of the CrPC should not be enforced purely on fear, but rather on the basis of conditions likely to create annoyance or disruption. It addressed precedents emphasising the importance of urgent situations, judicial exercise, and order time restrictions. According to the court, Section 144 cannot be used to stifle legitimate expression or democratic rights but must be used to avoid hindrance or damage to properly employed persons. It distinguished between “law and order” and “public order,” noting that a disruption in law and order does not always violate public order. When invoking Section 144 for judicial inspection and verification, the court emphasised the necessity of presenting substantial facts. It emphasised the need of making the order public since depriving someone of liberty necessitates rationale and conformity to fundamental legal norms. To summarise, Section 144 can be used when there is an imminent risk or suspicion of harm. It should not be used to repress valid beliefs or rights, and the magistrate should strike a balance between limits and the proportionality principle. Repeated instructions would be regarded as an abuse of authority.

Issue 5

• The petitioners contended that press freedom was hampered in Jammu and Kashmir, but the court disagreed. The court recognised the significance of press freedom and the requirement for proof to back up assertions of limitations. The court did not interfere since the petitioners failed to give substantial proof, instead encouraging the government to preserve press freedom and facilitate journalists’ reporting.

DEFECTS OF LAW

• The Court did not provide people affected by the orders with immediate relief by eliminating limits on internet access and travel, but it did outline parameters for future suspension orders. One of the key legal defects in the Anuradha Bhasin versus Union of India ruling was the absence of information concerning the proportionality test. The proportionality test requires that any restriction on basic rights be reasonable in relation to the damage it seeks to avert. Despite admitting the existence of the proportionality criteria, the Supreme Court did not apply it in this instance. As a result, the Court needed to evaluate how internet shutdowns might impair the right to free expression and expression. According to the Supreme Court, internet shutdowns should be used only as a last resort and for the least amount of time feasible. The Court, however, did not elaborate on what constitutes the “shortest duration possible.” Because of the lack of clarity, the government can continue to impose lengthy internet shutdowns. The decision was primarily concerned with the impact of internet shutdowns on free speech and expression, without sufficiently assessing their influence on economic and social growth. The ambiguity around the proportionality criteria and the duration of internet shutdowns may potentially result in arbitrary and unreasonable limitations on free speech and expression.

INFERENCE

• The decision has left a historic legacy that has reinforced the protection of fundamental rights on the Internet. The ruling established a framework for judges to use in determining the legality of internet shutdowns. It has provided a long-drawn path in contemporary sociocultural dynamics. Unlike print media, the Internet has become a crucial tool for conveying news, both necessary and unneeded for two-way information transfer. The decision reinforces the significance of fundamental rights in a democracy and emphasizes the necessity for the government to strike a balance between the right to free expression and the requirement to preserve peace and order. The decision also emphasizes the significance of Internet access in today’s digital era, and governments must ensure that any limits imposed on it are fair and proportionate. This case provided a ray of hope in a time when the right to the Internet is as fundamental as any other right, especially in our Socio-global village, by setting a precedent for growth and opportunities arising from the right to the Internet while also preserving the country’s democratic nature.

Garvit Agarwal

O.P. Jindal Global University

---

[1] Anuradha Bhasin v. Union of India AIR 2020 SC 1308.

[2] Anuradha Bhasin v. Union of India AIR 2020 SC 1308.

[3] Anuradha Bhasin v. Union of India AIR 2020 SC 1308.