Anuradha Bhasin v. Union of India

Particulars	Details
Parties	Anuradha Bhasin (Petitioner) vs. Union of India (Respondent)
Type of Case	Writ Petition (Civil) under Article 32 of the Constitution
Case Number	Writ Petition (Civil) No. 1031 of 2019
Date of Judgment	10th January 2020
Bench (Judges)	Justice N.V. Ramana, Justice R. Subhash Reddy, Justice B.R. Gavai
Advocates (Prominent)	For Petitioner: Sr. Advocate Vrinda Grover For Respondent (Union of India): Attorney General K.K. Venugopal

FACTS:

1. Anuradha Bhasin v. Union of India arose out of unprecedented measures adopted by the Government of India in the state of Jammu and Kashmir, on 4th August 2019, a day prior to the formal abrogation of Article 370 of the Indian Constitution, which had provided the state with special status.

2. Foreseeing probable public unrest as a consequence of the reorganization of Jammu and Kashmir into two union territories, and after it lost its special constitutional status, the Union Government imposed a slew of draconian prohibitory restrictions.

3. These restrictions included a communications shutdown (mobile, landline, and internet services), and the invocation of movement restrictions under Section 144 of the Code of Criminal Procedure (CrPC).

4. Astronomically enough, the internet service was shut down for an extended and indefinite period.

5. The complete internet shutdown and imposition of prohibitory orders took a toll on the daily lives of ordinary citizens and institutions.

6. Journalists could not report on the ground situation, hospitals could not access patient data or medical equipment, schools were disrupted, and businesses lost valuable investments.

7. In response, Anuradha Bhasin, the Executive Editor of Kashmir Times, petitioned the Supreme Court with a writ petition under Article 32 of the Constitution of India, requesting the court to consider the legality/constitutionality of the restrictions.

8. The Executive Editor challenged the lockout of communication and ban on movement, arguing that the subsequent orders were arbitrary, disproportionate, and in breach of fundamental rights, specifically the right of freedom of speech and expression under Article 19(1)(a), and the right to pursue any profession or carry on any trade or business under Article 19(1)(g).

9. The writ challenged the nature and extent of executive power to forbid in the interests of public order and national security, and whether executive action can resist constitutional challenge where the civil liberties of the citizen are significantly abrogated.

2. ISSUES RAISED

The Supreme Court considered the following key constitutional issues:

1. Whether freedom of speech and expression and/or the right to pursue any profession by way of the medium of the internet is protected by Article 19 of the Constitution of India;
   
   
2. Whether restrictions, imposed by the Government under Section 144 of the CrPC, and the complete suspension of internet services, were constitutionally valid and had passed the tests of proportionality and necessity;
   
   
3. Whether any failure by the Government to comply with the obligation to publish the orders concerning the shutdown of internet and restrictions on movement constituted a breach of its procedural due process obligations and transparency duties;
   
   
4. Whether indefinite suspension of internet services was sustainable and constitutionally valid under the existing legislative scheme, which included the Telegraph Act, 1885 and the Temporary Suspension Rules, 2017;
   
   
5. What procedural and substantive safeguards should be required when the State is seeking to restrict fundamental rights in the public interest and under its Article 19(2) and Article 19(6) powers as regards public order, national security or similar grounds.
   
   

3. CONTENTION

Petitioner’s Contentions:
 

1. The total and unrestricted suspension of internet service breached Articles 19(1)(a) and 19(1)(g), particularly as, in today’s digital age, the internet serves as an indispensable platform for both free speech and professional activity.

2.  The restrictions were arbitrary, disproportionate, and lacked justification, and therefore, they did not satisfy the “test” of proportionality in the Constitution in response to earlier judgments from cases like Modern Dental College and Puttaswamy.

3.  The lack of notification of the shutdown orders and the blanket application of section 144 made the actions functionally opaque, unable to be reviewed, and constituted clear violations of natural justice principles and the rule of law.

4.  The measures amounted to, or could be construed as, de facto censorship and prior restraint, which fundamentally compromised the freedom of the press and access to information to the public, which is a vital component of democracy.

5.  The absence of oversight and the lack of any review mechanism over the imposition and continued imposition of such a restriction raises serious constitutional concerns.

Respondent’s Contentions (Union of India):

1. The Government contended that the restrictions were a preventative measure necessary to deter potential violent protests, terrorist incidents and the subsequent breakdown of law and order after the constitutional debates surrounding sensitive matters in Jammu & Kashmir.
    
2. It should be noted that this situation was an exceptional situation looking at the history of militancy in the region, and extraordinary measures were reasonably necessary to protect public safety and avoid compromising national sovereignty.
    
3. The argument was that the executive was in the best position to make the determination regarding threats and ground realities, and judicial review should be cautious in infringing upon the executive’s determination of national security.
    
4. The Government argued the restrictions were temporary, reviewable, proportional in the circumstances, and that essential services were not completely stopped.
   
5. The Government justified the legally permissible nature of the internet shutdown by relying upon the provision of the Temporary Suspension Rules, 2017, under the Telegraph Act, and argued that due process was followed.

4. RATIONALE (Judgment & Reasoning)

The Supreme Court issued a unanimous judgment through Justice N.V. Ramana, recognizing the fine balance between civil liberties and national security, and set forth several important constitutional principles.

a. Internet and Fundamental Rights:
The Court held that freedom of speech and expression under Article 19(1)(a) and the right to trade and profession under Article 19(1)(g) include the internet. The internet is an essential medium in the digital age, and access to the internet is a facilitator of other fundamental rights.
Thus, while access to the internet is not a separate fundamental right, it is nonetheless protected as part of existing rights. The government has the power to impose restrictions, but such restrictions must satisfy Article 19(2) and Article 19(6).

b. Test of Proportionality:
The Court echoed the test of proportionality as the standard in assessing restrictions on fundamental rights. All restrictions must satisfy the following:
Legality (law),
Legitimate purpose (public order, national security, etc.),
Necessity, and
Proportionality (least restrictive means).
The Court held that blanket bans on the internet without specifics and without publication of orders fail the proportionality test.

c. Need for Publication and Transparency:
The Court reiterated the importance of transparency and procedural safeguards. All orders pertaining to shutdowns and internet restrictions should be:
Published in the public domain.
Subject to judicial oversight.
It allows affected parties to contest these orders and increases accountability and the right to a remedy.

d. Section 144 Orders:
The Court ruled that Section 144 CrPC cannot be manipulated to stifle dissent or legitimate democratic activity. Orders made under Section 144 must be:
Based on material facts,
Time-specific and detailed, and
Subject to judicial oversight.
Extreme and disproportionate recourse to Section 144 without appropriate justification will only undermine the freedoms provided by the Constitution.

e. Indefinite Internet Shutdowns are Unlawful:
While the Court did not require the immediate restoration of services, it did however clarify that there can be no indefinite suspension of internet services. All restrictions must be:
Reviewed regularly, and
Lifted as soon as the situation allows.

5. DEFECTS OF LAW

Despite the forward-looking principles laid down, the case also exposed several legal and institutional deficiencies:

1. Absence of Explicit Legislation: India does not have any comprehensive legal framework for a legal regime on internet shutdowns in India. The only statute that governs this is the Telegraph Act, 1885 and the Temporary Suspension Rules, 2017. The statutes are colonial, outdated, and inconsistent with the reality of the digital age.
2. Unclear and Overly Broad Discretion: The legal framework provides broad discretion to any executive agencies, thus allowing them to restrict rights without justification or oversight.
3. No specific requirement for proportionality in statute: The relevant rules do not provide for the doctrine of proportionality in their text and all enforcement is solely dependent on the discretion of the courts which may not be immediate.
4. Lack of Independent review mechanism: There exists no independent tribunal or court that can review the shutdown orders relatively quickly. The review committee under the Temporary Suspension Rules is not transparent and lacks public accountability.
5. Delay in relief from Courts: Notably, although a writ was filed under Article 32, there was delay in relief, and no positive directions were given to lift the bans. The Court left entire discretion to the executive in relation to implementation, diluting the force of the Court’s pronouncements.

6. INFERENCE

1. The Anuradha Bhasin judgment is a precedence judgment in the Indian constitutional jurisprudence of digital rights, civil liberties, and accountability of the executive, as it was the first time the Supreme Court shook off its traditional complacency and realized that freedom of speech and freedom of profession via the internet is a constitutionally guaranteed right.

2. It outlined meaningful procedural protections and held that permanent shutting down of the internet is unconstitutional.

3. It set out the doctrine that government bans on access to the internet will need to be published, thus establishing transparency and safeguarding the right to information.

4. Despite this, the verdict has been faulted for offering no actionable relief: it did not order that services be re-established instantly, nor strike down the current shutdown orders; and it ended up validating the regime it had earlier denounced.

5. In factual terms, while the verdict fortified the legal framework for opposing future clampdowns, it brought into being very little solace for the people of Jammu and Kashmir at the time.

6. The judgment reflects the conflict between national security and civil rights, and it is a classic case of the necessity of judicial backbone in enforcing constitutional provisions.

7. Finally, the ruling is doctrinally robust but remedially flaccid.

8. It is a robust foundation for subsequent litigation, and it calls for rapid legislative change so that the right to fundamental rights is not restricted by executive discretion in the digital era.

Name: Ritika Chaudhary

College Name: O.P. Jindal Global University