Date of judgement: 10-01-2020 Petitioner: Anuradha Bhasin Respondent: Union of India and Ors
Bench: N.V.Ramana, V.Ramasubramanian
INTRODUCTION
Anuradha Bhasin v. Union of India is a landmark case in Constitutional Law as it ponders in depth into the ambit of Right to Freedom of Speech and Expression.
On the eve of abrogation of Article 370, by the Government of India, the government suspended all internet, telecommunication, landline connections in Jammu and Kashmir.
The internet shutdowns and restrictions so imposed prevented the journalists from reporting and publishing reports thereby hindering the flow of information. This restriction was imposed when a Constitutional Order 272 was issued by the President of India which was applicable through Jammu and Kashmir.
This restriction was challenged in the Supreme Court of India for violating fundamental rights. It was found to be violative of Article 19 of the Indian Constitution which guarantees the Right to Freedom of Speech.
Ms. Anuradha Bhasin, the editor of the Kashmir Times filed a petition in the Supreme Court challenging the indiscriminate suspension of internet access in Jammu and Kashmir.
FACTS OF THE CASE
On the 5th of August 2019, the Indian Government nullified Article 370 which granted Jammu and Kashmir with special status. On the eve of this massive move by the government it issued a Constitutional Order that led to the suspension of internet, telecommunication, landline.
On the same day, due to prevailing circumstances, the District Magistrate passed the order restricting the movement and public gathering, apprehending breach of peace and harmony under Section 144 of CrPC
This restricted the flow of information to the people in crucial times and hindered the journalists from reporting and publications. The internet shutdown and movement restrictions, restricted the ability of journalists to travel This was challenged in the Supreme
Court of India as violating fundamental rights guaranteed under Article 19 of the Indian Constitution which grants the Right to freedom of speech and expression.
Ms. Anuradha Bhasin, the editor of the Kashmir Times filed the petition challenging this indiscriminate restriction imposed by the government.
She contended that internet is an essential in the modern press era and by shutting the internet down, the authorities forced the print media to come to a “grinding halt”. And because of this reason she was not able to issue her newspaper on 6th August 2019.
Consequently, the suspension of internet and other telecommunication networks were challenged in the Supreme Court of India along with questioning the validity of imposing restrictions under Section 144.
ISSUES RAISED
In line with aforesaid facts and arguments, the following questions of law arise for our consideration:
- Whether the Government can claim exemption from producing all the orders passed under section 144 and others under suspension rules?
- Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?
- Whether the Government’s action of prohibiting internet access in the state is valid or not?
- Whether imposing restrictions under section 144 are valid?
- Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions.
CONTENTION PETITIONERS
The petition was filed by Ms. Anuradha Bhasin, executive editor of Kashmir Times. She claimed that print media would have come to a “grinding halt” without the internet and that it is extremely important for the working of modern press. As a result of the restrictions imposed she was not able to publish her newspaper starting from 6th August 2019. According to her, the administration did not provide the justification for passing the order as required under the suspension rules. She also argued that the orders were only issued because there was a chance that law and order would be in jeopardy. Additionally, public order is not the same as law and order, neither was in jeopardy when the orders were passed.
An intervenor argued that courts in various countries should strike a balance between the steps needed to protect citizens’ rights and prevent terrorism. The state argues that accepting the idea would give it too much power to impose restrictions in such instances, citing the continuing strife in Jammu and Kashmir as support for its position. Social norms will take the place of individual rights. He asserted that the restrictions were against the Indian National Telecom Policy of 2012. He concluded by saying that even if the restrictions were only temporary, they have been in place for more than 100 days and should be considered when making a decision.
Member of Parliament Mr. Ghulam Nabi Azad filed a petition in the court in which he claimed that the state could not assert any form of privilege before the court as a justification for failing to produce such orders. Furthermore, he noted that only a small number of circumstances allow for the declaration of a national emergency, since in this instance neither an internal nor foreign disruption existed. There was no reason to pass Section 144 of the CrPC because there was no concern about the state’s law and order. His argument was that restrictions should be placed explicitly on members of a particular group that disregard the peace rather than on everyone.
RESPONDENTS
The Attorney General said that it is necessary to consider Jammu and Kashmir’s history of terrorism. He said that “the cognizance of problem in the state” must be taken into account prior to enacting the decree. Knowing that there is internal militancy as well as cross-border terrorism, it would be foolhardy to take no precautionary action. Knowing the history, there may be significant violence if the government does not take action. When a terrorist was slain in 2016, same actions were also performed.
The Solicitor General said that the State’s first responsibility is to safeguard its citizens. And given the history of Jammu and Kashmir, such actions are required. Both physical and virtual cross-border terrorism affects the state. In response to the petitioners’ and intervenors’ arguments, it was countered that neither group knew the details of the situation in Jammu and Kashmir and that free movement had never been impeded. The restrictions are currently being gradually loosened in light of the local conditions.
As they were the best qualified to understand the actual circumstances in that area, the Magistrates of their separate jurisdictions under Section 144 of the CrPC issued orders. And the relaxation that was previously enforced based on a threat perception has now been reduced to practically 100%. Additionally, all radio stations, newspapers, and television stations are broadcasting, even from Srinagar, where the petitioner is located. There were no limits put in place in the Ladakh region, proving that the decision was passed with consideration and that there was no “general clampdown” as claimed by the petitioners.
In order to ensure public safety, orders issued under Section 144 of the CrPC may be preventative in nature. He said that the decision was justified given the circumstances in Jammu and Kashmir.
He claimed that access to the internet was never limited in Jammu and Ladakh. Social media allows for the sending and receiving of messages to many individuals, including ones that have the potential to instigate violence. As a result, social media usage is limited, and fraudulent news, photos, and messages can spread online. The dark web makes it possible to buy illegal firearms as well, and it is not possible to block access to some websites while maintaining access to others, as was attempted earlier in 2016 and failed.
RATIONALE
The Supreme Court ruled that one of the essential components of Article 19(1)(a) includes the freedom of speech and expression on the internet. They emphasised the previous decision in Indian Express v. Union of India, which established freedom of the press to be a fundamental right under Article 19(1)(a). Later, it was decided in the case of Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana that Article 19(1)(a) now protects people’ rights to film exhibition.
The Court turned down this argument. Unquestionably, one of a democracy’s fundamental characteristics and one that the Constitution does a great job of protecting is press freedom. The petitioner was unable to provide any proof that the state’s instructions placed restrictions on press freedom, including the publication and distribution of newspapers.
As a result, the court was unable to determine whether or not the claim was valid. The petitioner has since started publishing again. The court concluded that it was not unlawful and that the government was protecting journalistic freedom as a result.
The Supreme Court ruled that valid expression of opinion, complaint, or exercise of any democratic right cannot be suppressed by the use of power. This section may only be enforced in an emergency; it may not be used to prevent instruction or harm to those who are lawfully employed. Therefore, a simple disruption of the state’s law and order may not always result in a breach of the peace. Whether there is a threat to the public peace can only be determined by the magistrate and the state. Repeatedly imposing such restrictions would be an obvious abuse of authority because no one should be denied their freedom unless doing so would be dangerous. The court ruled that the state had to make the court’s ruling imposing limits public. When the state refused to present the order to the court, it had stated that it was difficult to determine if the restriction had been imposed legally. The state is required to give any pertinent information that is required. According to the interpretation of Article 19, the right to information is included in the freedom of speech and expression. Such laws cannot be passed by the state based solely on perceived danger. This rules out using it as a justification for withholding the order. The Court emphasised that in order to establish whether the internet shutdown was constitutionally legal, it was necessary to take into account both procedural and substantive factors.
The procedural mechanism is composed of two parts. Internet service providers and the government have a contractual relationship, which is the first aspect. There is also the legislative component, which is covered by the Telegraph Act, the Code of Criminal Procedure, and the Information Technology Act of 2000.
The Telegraph Act’s Section 7 Suspension Rules, which were passed in 2017, allows for the suspension of internet use under specific conditions. In addition, Section 5(2) of the Telegraph Act only permitted suspension orders for the public’s safety or in the event of a public emergency.
DEFECTS OF LAW
While such restrictions imposed on the publication of newspaper, internet and other telecommunication networks can block the flow of information and prevents the Right to Information, the access to internet can pose severe national security issues and can lead to unlawful activities in Jammu and Kashmir especially during high alert and sensitive situations. The restrictions imposed could have been partially considered as a reasonable restriction keeping in mind the best interests of the country.
INFERENCE
There is some hope for improvement in this situation thanks to the court’s decisions in this case. The government cannot oppose producing any orders made pursuant to Section 144 of the CrPC, the court concluded, and must instead rely on the specific facts and circumstances of each case to determine whether or not the government can object. The court went on to say that as the internet has become such an essential part of contemporary life, the freedoms of speech and expression as well as the pursuit of any profession, trade, or company online are all recognised as fundamental rights. Without technology, we would not be able to write, publish, or engage in a number of delicate social media activities, as demonstrated by the Anuradha Bhasin v.Union of India case serves as a prime example of how essential technology is to modern life. The decision was carefully crafted.
The case has effectively set a precedent that recognises freedom of speech and expression as Fundamental Rights that are guaranteed and safeguarded by Article 19 of the Indian
Constitution, as well as the right to engage in any profession, trade, business, or occupation through the use of the internet.
REFERENCES
1. Indian Kanoon, Anuradha Bhasin v. Union of India, 2019 https://indiankanoon.org/doc/82461587/
Lakshmi P Nath
CMRU, School of Legal Studies, Bangalore