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ANURADHA BHASIN & ORS. v. UNION OF INDIA& ORS.

Case Comment, Publications

AIR 2020 SC 1308

Writ Petition (Civil) Nos: 1031 and 1164 of 2019

Hon’ble Supreme Court of India

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

FACTS:

In 2019, the Indian Government abrogated Article 370 of the Indian Constitution, which conferred special status to the state of Jammu and Kashmir. The President issued a Constitutional Order, to the State of Jammu and Kashmir. This decision confronted tremendous chaos and uproar among people at large due to discontentment and agitation. The District Magistrates, fearing breach of peace and tranquillityimposed restrictions on movement and public gatherings. Jammu and Kashmir had a series of restrictions imposed in an attempt to maintain law and order in the state. This ranged from the total lockdown of the state to the suspension of internet services in the entire Jammu and Kashmir, which ran for several months. Under this restriction, any means of communication had been shut down or suspended. In this backdrop, the petitioners assailed the constitutional validity of the restrictions and limitations on the freedom of movement and freedom of speech and expression before the SC of India, filing a petition under Article 32 of the Constitution.

Anuradha Bhasin was a journalist as well as the executive editor of the Kasmir Times. Aggrieved and inconvenienced by this petition, she filed a writ petition in the Hon’ble Supreme Court of India challenging the government’s decision to indefinitely shut down all internet services. Bhasin in her petition argued that the suspension of internet services was an infringement of her Fundamental Right guaranteed under Article 19 of the Indian Constitution. Since the internet is a necessary tool for communication and exercise of free speech, the shutdown affected her professional duties and also prevented information dissemination to the public. This underscored the democratic values enshrined in the Constitution of India.

Along with Bhasin’s petition, Gulam Nabi Azad, a senior leader of the Indian National Congress and a Member of Parliament filed another petition. In his case, he argued that the shutdown prevented political leaders like him from reaching out to the public. It had also become impossible to communicate with his constituents. This was an infringement on the public’s right to representation and communication.

The Supreme Court, recognizing the wider implications of suspension of internet access on civil liberties and democratic processes, took cognizance of these two petitions. The case was heard by a 3-Judge Bench and judgement was given on January 10, 2020.

ISSUES RAISED:

The Bench, comprising of Justice N.V Ramana, Justice R. Subhash Reddy, and Justice B.R Gavai considered five central issues: –

  1. “Does the Government have the right to refuse to provide all orders issued under Section 144 of the Criminal Procedure Code and other orders issued under the Suspension Rules?”
  2. “Whether the freedom of expression and speech, as well as the freedom to practice any profession and engage in any kind of employment, trade, or business over the Internet, are guaranteed by Part III of the Constitution’s fundamental rights?”
  3. “Is it appropriate for the government to forbid internet access?”
  4. “Whether the limitations imposed under Code of Criminal Procedure Section 144 were lawful?”
  5. “Whether the limits violated the Petitioner’s (Anuradha Bhasin) freedom of press in W.P. (C) No. 1031 of 2019?”

CONTENTIONS:

Petitioners:

  1. Vrinda Grover, representing the first plaintiff, contended that the internet played an extremely critical role in modern journalism and communication. The suspension of internet services severely curtailed the Petitioner’s (Anuradha Bhasin) ability to publish her newspaper. Curtailment of Internet is a restriction on the Right to free speech, and as such, should be tested on the basis of reasonableness and proportionality.
  2. The government’s actions lacked transparency-they were not based on any credible evidence or proper application of mind. Basically, the orders passed under the Suspension Rules placed on record by the State of record by Jammu and Kashmir wereex facie perverse and suffered from non-application of mind. Not only had the government failed to comply with the procedure laid down under the Suspension Rules, but orders given by the government did not provide any reasoning as to the necessity of restrictions (which is required under the Suspension Rules). It was asserted that such blanket restrictions were extremely unconstitutional and excessive in context of the stated objectives of maintain public order.
  3. Mr. Kapil Sibal, representing Gulam Nabi Azad basically reinforced the arguments given by Grover. Additionally, he argues that the restrictions, besides harming journalists also harmed elected representatives like the petitioner (Azad) from communicating with his constituents. He also argued that the Union of India can only declare Emergency in case of ‘internal disturbance’ or ‘external aggression’- neither of which has been shown in the present case.
  4. Sibal contended that the government’s reliance on the Code of Criminal Procedure to justify the shutdown was misplaced. Section 144 was intended for specific situations where there is an imminent threat to public. However, its application in this case is overly broad and vague. The government had not provided sufficient evidence to justify such sweeping restrictions. He emphasized that the least restrictive measure should have been put in place, like restricting only social media apps like WhatsApp and Facebook. While imposing restrictions, rights of individuals need to be balanced against the duty of state to ensure security. The measures taken should allow people to continue with their daily life.
  5. Both the counsels called for restoration of internet services and establishment of clear guidelines to ensure that any future restrictions imposed are lawful, transparent and proportionate to circumstances. The contentions of the petitioners collectively advocated for a balance between liberty and security.

Respondents:

  1. The respondents argued that the internet suspension and other restrictions were necessary to maintain law and order and prevent the spread of misinformation after abrogation of Article 370.
  2. The power to impose reasonable restrictions on was given under Article 19(2) and 19(6) of the Constitution.
  3. The orders imposing restrictions were not ex facie pervasive but based on credible material and passed by competent authorities after due application of mind.
  4. Restrictions were temporary in nature and proportionate to the situation. They did not amount to a complete ban on internet access. 
  5. The internet services were used to spread misinformation which could disturb public order. The government had a duty to maintain public order and security, which had to be balanced under individual rights.

RATIONALE:

The petitioner won their case in the court’s ruling. It decided that the administration could not avoid providing the court with Internet suspension orders. Furthermore, the government cannot suspend Internet services indefinitely; instead, it must periodically review the suspension orders.

 Although it may sometimes be necessary to suspend internet services to safeguard public order, restrictions cannot be arbitrary and excessive. Some key points of the rationale are listed below:

  1. Constitutional Protection: The freedom of Speech and expression extends to the internet, and any restriction on this thus, must meet the criteria given under Article 19(2) and (6).
  2. Proportionality and Necessity: The principle of proportionality was emphasized by the Court, which stated that any order(s) suspending Internet services must not exceed the intended goal of maintaining public order. Under the existing rules, it was clarified that internet could not be suspended indefinitely.
  3. Transparency and Accountability: The court mandated that all orders suspending internet services and restrictions under Section 144 of the CrPC  must be published and made accessible to the public. This is to ensure the accountability of the government.
  4. Balance between Liberty and Equality: The judgement aimed to fins a balance between the liberties enjoyed by an individual and the state’s duty to maintain security. The court validated the state’s concerns regarding public order but at the same time stated that these cannot justify blanket restrictions infringing upon the fundamental rights of individuals.
  5. Chilling Effect on Press Freedom: The Court highlighted the importance of a free press in a democratic society by recognizing the chilling effect that the internet shutdown had on the press.

DEFECTS OF LAW:

This case exposed a number of flaws in India’s current legal system and regulations pertaining to internet shutdowns and suspensions. These shortcomings made clear how urgently a comprehensive law governing limitations and guaranteeing transparency is needed. The Supreme Court pointed out that there were no precise rules for the establishment of internet access limits. Insufficient advice was provided by the current lawregarding the circumstances and processes for terminating internet services. The notion of proportionality was breached by the indefinite nature of shutdowns. Although the Temporary Suspension of Communication Services (Public Emergency or Public Service) Rules, 2017 were meant to impose temporary constraints, the Jammu and Kashmir orders resulted in an indefinite suspension of services. The court emphasized the necessity of customizing limitations in light of the unique situation and the possibility of platform abuse. The Supreme Court noted that there were insufficient protections against authority abuse under the current legal system. It was determined that the orders issued under Section 144 of the Code of Criminal Procedure and the Suspension Rules did not follow the necessary protocols and lacked mental applicability. The Court emphasized the necessity of strong protections against capricious and excessive limitations on internet access.

INFERENCES:

The judgment in Anuradha Bhasin v. Union of India has implications for governance, civil liberties, and the legal regime governing access to the internet in India, with several important conclusions flowing from it.Both the right to freedom of speech and expression under Article 19(1)(a) and the right to perform any profession under Article 19(1)(g) entirely rest upon access to the internet, which the Supreme Court decision quite clearly recognized. The above deduction is an important guideline for future legal disputes related to digital rights and supports the view that the internet has to be regarded as a core medium for communication and dissemination of information within a democratic society.It further crystallized the principle of proportionality, which expounded that all restrictions to rights be reasonable and not unduly burdensome. Indefinite internet shutdowns are disallowed under the transitory Suspension of Telecom Services Rules, 2017, and accordingly, any such action must be transitory and subject to periodic review, the Court held. This conclusion sets a threshold for examining whether future restrictions set by the government are legal. Court ordered that orders relating to internet shutdowns and restrictions under Section 144 of the CrPC be published. It will increase accountability as now citizens can question arbitrary state actions by demanding that these orders are made public.The Court accepted that there needs to be a balancing act between national security concerns and individual liberty. It underlined that the duty of the state to maintain public order is not meant to be carried out at the cost of basic human rights. The implication here is that measures for security are not supposed to be used as an excuse to violate civil liberties, hence bringing in nuanced governance.The judgment appeals to the government to revise its legal regime pertaining to access to the internet and shutdowns. Comprehensive legislation is invited, filling in the lacunae left by the Court, so that any future restrictions on access to the internet would have a sound basis in law and accord with constitutional rights.

The judgment in this case has, in effect, reinvented the constitutional mandate for internet access while laying down crucial benchmarks about responsive governance and protection of human freedom in India. It is a timely reminder for retaining the democratic ethos amidst security threats without unduly compromising individual rights.

-Preetyorthi Dasgupta

 Chanakya National Law University, Patna.