Case Study
Contents
Freedom of Speech and Expression: 3
Principle of Proportionality: 4
- Facts of the Case
- The Indian President issued a Constitutional Order on August 5, 2019, extending the Indian Constitution’s applicability to the State of Jammu and Kashmir. This action essentially revoked the unique status that Article 370 had previously bestowed upon Jammu and Kashmir. .
- In accordance with Section 144 of the Code of Criminal Procedure, the District Magistrates of several districts in Jammu and Kashmir were also involved in putting a stop to a breach of peace that day and imposed restrictions on public gatherings and movement. These restrictions also included the suspension of communication services, such as internet, mobile, and landline services.
- Following August 5, 2019, these restrictions severely impacted journalists limiting their ability to report and move freely. The communication blackout made it impossible for them to practice their profession.
- 4. The Petitioners, who included journalists, filed a writ case with the Supreme Court after August 5, 2019. They requested the restoration of all communication services, arguing that the limitations infringed upon their fundamental rights under Article 19(1)(a) (freedom of speech and expression) and Article 19(1)(g) (right to exercise any profession or engage in trade or business).
- Issues Involved
1. Whether the government can refuse to produce all orders issued under Section 144 of the Code of Criminal Procedure and the Suspension Rules.
2. It is still unclear whether Part III of the Constitution recognizes the freedom to engage in any profession, conduct any trade, occupation, or business, and the ability to utilize the internet for freedom of speech and expression as fundamental rights.
3. Whether the government’s choice to impose restrictions on internet access was lawful is a critical inquiry.
4. Whether Section 144 of the Code of Criminal Procedure’s limitations were lawfully enforceable.
5. Whether the restrictions infringed upon the petitioner’s freedom of the press in W.P. (C) No. 1031 of 2019 is a key consideration.
- Contentions
- Arguments for Petitioners
The Petitioners, represented by Senior Counsel Mr. Kapil Sibal and Counsel Ms. Vrinda Grover, contended that the restrictions imposed in Jammu and Kashmir post-August 5, 2019, were excessive and disproportionate. They argued that the curtailment of internet services severely impacted the freedom of the press, with Ms. Grover specifically highlighting that her client, an editor of a major newspaper, was unable to function due to the internet shutdown. Both counsels maintained that the internet, crucial for modern communication and journalism, is essential for the exercise of the right to free speech, which should be evaluated based on the principles of reasonableness and proportionality.
The Petitioners argued that the orders issued under the Suspension Rules, which temporarily suspended telecom services, were not in compliance with the legal procedure, lacked proper reasoning, and were overly broad. Mr. Sibal pointed out that these restrictions resembled an emergency declaration, which should be applied only in particular situations, such as internal unrest or external threats, neither of which were evident in this case.
They further contended that the orders under Section 144 of the CrPC, which restricted movement, were not targeted at specific individuals or groups who posed a threat but rather imposed on the entire population without sufficient justification. Both Mr. Sibal and Ms. Grover emphasized that a blanket shutdown of an entire state is disproportionate, and instead, the State should have adopted the least restrictive measures, such as blocking specific social media sites rather than implementing a total internet ban. Mr. Sibal also noted that such restrictions affect not just free speech but also economic activities, as they hinder trade and business operations.
The petitioners advocated for a balance between security issues and the safeguarding of fundamental rights, urging the State to implement measures that enable normal life to proceed while ensuring public order is maintained.
- Argument for Respondents
The Respondents that are the State in the present matter were represented by the State’s Attorney General of India Mr. K.K. Venugopal and Mr. Tushar Mehta serves as the Solicitor General for the State of Jammu and Kashmir.
The Solicitor General Countered Petitioner’s argument by saying that although restrictions were imposed initially in certain places, these restrictions were being removed based upon a threat assessment. Individual movement was never blocked in its entirety. Education and media, including newspapers and television, were in motion, showing that things were resuming back to normal. He stated that the implementation of Orders under Section 144 of the Code of Criminal Procedure was carried out to avert disruptions to public order, relying on intelligence gathered by the officers on the ground.
The Solicitor General observed that quite necessary limitations fixed by the order were in light of ground realities in the region. In support of his argument, he took help from the decisions of Babulal Parate v. State of Bombay and Madhu Limaye v. Sub-Divisional Magistrate, highlighting that it is public safety that ought to be kept above all inconveniences meant to be caused by the restrictions. On the topic of the internet shutdown, he countered that while internet was restored in Jammu and Ladakh, access was necessary to handle the spread of violence and misinformation through social media. Attempts to block certain websites selectively failed in the past, as the Solicitor General pointed out.
The Solicitor General argued that these restrictions were wholly warranted in light of the ground realities of unrest and cited past judicial decisions- Babul Parate v. State of Bombay and Madhu Limaye v. Sub-Divisional Magistrate to argue the principle that public safety constituted an overriding consideration over inconveniences so caused by the restrictions. The matter of internet shutdowns was taken up by stating that while there was internet in Jammu and Ladakh, limiting it in Kashmir was done to prevent any further violence and misinformation through social media. The Solicitor General also stated that the attempts to selectively block certain websites had reportedly failed in the past.
He wound up this part of the argument to indicate that these orders were made in light of proper procedure, taking into consideration the national security constraints, and the situation was on a steady improvement path in Jammu and Kashmir.
- Inference
The case sets a decisive precedent for the years ahead, primarily surrounding digital rights. One major takeaway is that the law needs to adapt to the growing dependence on the internet for everyday tasks, be it talking, business, or journalism. The judgment calls for even more coherent standards to regulate the internet shutdowns, with the duration regulated and subjected to regular reviews to prevent executive incompetence. It amplifies the fact that even if there is justification for restricting a person’s fundamental rights, it should be the least intrusive form of such restrictions. This ensures that the government can keep public order while minimizing interference with personal rights. The subordination of executive discretion of the Court’s recognition of judicial oversight is most likely to frame upcoming cases relating to the limitations of civil liberties in security-threatened regions.
- The Supreme Court’s Decision
In the case of Anuradha Bhasin v. Union of India, the Supreme Court made the following decisions:
- Freedom of Speech and Expression:
The Court upheld the Constitution’s protection of the freedom of speech and expression as well as the freedom to engage in any kind of online trade, company, or profession (Articles 19(1)(a) and 19(1)(g)).
Any restrictions on these rights must follow the rules in Article 19(2) and Article 19(6) of the Constitution and must pass the test of proportionality (meaning the restrictions should be reasonable and not excessive).
- Suspension of Internet:
Indefinite suspension of internet services is not allowed under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017.
Internet suspension should only be temporary and used in urgent situations.
- Principle of Proportionality:
Any order to suspend the internet must follow the principle of proportionality, meaning the suspension should only last as long as absolutely necessary and should not go beyond what is required.
- Judicial Review:
Any internet suspension order can be reviewed by the courts to ensure it meets the legal standards mentioned above, ensuring the rights of individuals are protected.
- Rationale
The Supreme Court’s ruling in Anuradha Bhasin v. Union of India highlights the growing importance of digital platforms in the realization of fundamental rights. The Court acknowledged that, in contemporary society, the internet is essential for the right to free speech and expression under Article 19(1)(a) and the right to engage in trade or business under Article 19(1)(g). This marked a significant shift, as the Court acknowledged that the traditional understanding of these rights has evolved to include the internet as a vital medium for communication and professional activities. The Court utilized the principle of proportionality to evaluate the restrictions placed by the State, stating that any limitation on fundamental rights must be reasonable, necessary, and employ the least restrictive means possible. The rationale behind the decision was to ensure that national security concerns, while important, do not lead to excessive curtailment of individual freedoms. The Court balanced the State’s responsibility to maintain public order, especially in a sensitive region like Jammu and Kashmir, against the need to safeguard the fundamental rights of individuals, reinforcing that such restrictions should always be open to judicial scrutiny.
- Defects in the Law
The judgment in question has revealed the major problems that were faced by the government with the internet suspension, as well as the imposition of restrictions by the Section 144 of the CrPC.
One of the most important legal errors was the non-implementing of clear regulations in the Temporary Suspension of Telecom Services Rules, 2017, which gave an opportunity for the provider to stop their services indefinitely. The absence of procedural safeguards resulted in non-specific and continuous blockages that were neither given a time limit nor had a mechanism to quash. Moreover, the legal aspects of the decision of the working of the said act on the face of it can also talk of the spread of the power in the hands of the state authorities.
- Conclusion
The Court issued a number of important orders pertaining to the suspension of internet services and the execution of Section 144 of the Code of Criminal Procedure. It directed the State and pertinent authorities to make all orders concerning the suspension of internet services issued under Section 144 of the CrPC, both current and future, publicly available so that impacted parties might challenge these orders in court. Furthermore, the Court upheld the constitutional protections provided by Articles 19(1)(a) and 19(1)(g) for the freedom of speech and the ability to transact business online. The rationality and proportionality standards outlined in Articles 19(2) and 19(6) must be adhered to by any restrictions on these rights.
The Court explained that the Telecom Suspension Rules, 2017 prohibit an extended suspension of internet services. Any suspension need to be brief and shouldn’t go longer than absolutely essential. The principle of proportionality must be followed by these orders, which are subject to judicial review. Due to the absence of time constraints or periodic review provisions in the Suspension Rules, the Court mandated that the Review Committee perform a review within seven days following the previous review.
The State further instructed to review all existing internet suspension orders immediately, and any orders that do not comply with the law must be revoked. For any further orders, the legal frame work laid down by the Court must be followed. Additionally, the Court urged the State to consider allowing access to essential services, such as government websites, e-banking, and hospitals, in areas where full internet services have not yet been restored.
The Court provided clarification about the applicability of Section 144, stating that it can be called in cases where there is a legitimate fear of danger in addition to those where there is an imminent threat. However, the threat must be of an urgent nature and aimed at preventing obstruction, annoyance, or harm to individuals lawfully engaged in their activities. Importantly, the exercise of democratic rights or the expression of reasonable opinions cannot be suppressed under Section 144.
The Court also stated that any order issued under Section 144 must clearly outline the material facts, demonstrating that the authority applied its mind properly to situation. This is necessary to enable judicial scrutiny of such orders. Authorities are required to balance the rights of individuals with the need for restrictions, applying the least intrusive measures. The Court warned against the repetitive or prolonged use of Section 144, stating that such actions would amount to an abuse of power. Finally, the State was instructed to promptly review all existing Section 144 orders to ensure they comply with the legal principles set forth by the Court. In conclusion, the writ petitions and all outstanding applications were resolved in accordance with these directives.
Lakshay Sharma
NMIMS, Chandigarh