Anuradha Bhasin vs Union of India

Case Title:	Anuradha Bhasin vs Union of India
Court:	Supreme Court of India
Citation:	Writ Petition (Civil) No. 1031 of 2019, Writ Petition (Civil) No. 1064 of 2019,
Petitioner Name:	Anuradha Bhasin, Ghulam Nabi Azad
Respondent Name:	Union of India
Judges:	Justice N.V. Ramana, Justice R. Subhash Reddy and Justice B.R Gavai
Date of Judgment:	10th January, 2020

Anuradha Bhasin vs Union Of India on 10 January 2020

FACTS

• On 5^th August, 2019 the Government of India a constitutional order revoking the special status enjoyed by the state of Jammu and Kashmir under Article 370 of the Indian constitution.

• This revocation made the state of Jammu and Kashmir fully subservient to all the provisions in the constitution of India; something that was not the case since 1954.

• Leading up to the revocation, on August 2^nd, the Civil Secretariat, Home Department, Government of Jammu and Kashmir issues a notification advising the tourists and pilgrims to Amarnath to leave the state of Jammu and Kashmir.

• On 4^th August, mobile phone networks, data, and internet connectivity were all shut down in the state of Jammu and Kashmir.

• The district magistrates imposed additional orders restricting the freedom of movement in the state of Jammu and Kashmir under section 144 of the Indian Penal Code (hereafter IPC) restricting the assembly of 4 or more people in an area.

ISSUES RAISED 

• The petition brought by Ms. Anuradha Bhasin, an editor of the Kashmir Times, argued that the internet is essential for modern-day media and by shutting it down, the government has brought the media to a ‘grinding halt’.

• Were the restrictions imposed under section 144 of IPC reasonable and proportionate to the objectives of the government?

• Whether giving the state carte blanche to restrict fundamental rights under the pretext of national security and combating terrorism would allow the state to impose various restrictions on fundamental rights under varied situations.

• Whether the government can claim exemption from producing all the orders passed under Section 144 of the IPC and Suspension Rules?

• Whether the freedom of speech and expression and freedom to practice any profession, over the Internet is a part of the fundamental rights under Part III of the Indian Constitution?

• Whether prohibiting the access to internet under Section 144 of IPC is valid? Whether the freedom of the press of the petitioner was violated due to the restriction?

CONTENTION

1. The Petitioner’s arguments: –

• It was also argued that the restrictions were supposed to be temporary but had already exceeded the imposition period of 100 days.

• The petition by Mr. Ghulam Nabi Azad, a member of the Indian parliament, argued that the restrictions imposed on fundamental rights should be based on objective reasons and not conjectures.

• He also raised the issue that an emergency can be declared only in the case of ‘external aggression’ and ‘armed rebellion’. But in this situation, neither was the case.

• The orders published weren’t being presented to the public. Thereby hindering the process of justice.

1. The respondent’s arguments: –

• The learned attorney general of India, Shree KK Venugopal, argued that the terrorism in the state of Jammu and Kashmir was taken into account before imposing the restrictions. He submitted that ‘cognizance of the state’ is a must before issuing an order.

• The solicitor general of India, Tushar Mehta, submitted that the first and foremost duty of the state was to protect the citizens of the country. He further argued that there wasn’t a restriction on ‘individual’ movement. He further emphasized the gradual relaxation of restrictions in the state of Jammu and Kashmir.

• They further argued that section 144 of the IPC can only be invoked by the magistrates of a particular area. And considering that they have a thorough knowledge and better understanding of their respective area, they must have been cognizant of the requirements of their particular region.

• They also emphasized how section 144 of the IPC can be preventive in nature. It was impossible to segregate peaceful citizens from potential troublemakers and hence there were some umbrella restrictions.

• Deliberating on the point regarding the shutdown of the internet, the respondents emphasized how newspapers are one-way communication but anything on the internet is a two-way communication which makes it more convenient to spread false information.

• Furthermore, if the internet was made completely accessible there could be buying and selling of illegal weapons on the dark web which could lead to riots.

                  RATIONALE 

• The court clearly asserted that the state had to produce the orders imposing the restrictions. Citing the precedent in Ram Jethmalani vs Union of India, 2011 case, the court explained that the state had an obligation to disclose the information to satisfy the right to remedy as established in Article 32 of India’s constitution.

•  Article 19 of the Indian constitution grants the right to freedom of speech and expression and the right to information is an important aspect of it. The court emphasized the importance of accountability and transparency in a democracy. Hence the state was obligated to take proactive steps to make public any law restricting fundamental rights unless there was a countervailing public interest in the backdrop.

•  After the directions given by the honorable court, the state dropped its privilege and released some of the orders and stated that all couldn’t be released due to unspecified difficulties. The court didn’t clear this as a valid ground and said that the court would weigh the state’s privileges against the right to information and what portions of the order could be hidden or redacted.

•  The court also held that the internet plays a significant role in trade and commerce and some businesses completely depend on the Internet. Therefore, the freedom of trade and commerce was also protected under Article 19(1)(g) subject to restrictions under Article 19(6) of the Indian constitution. 

• The honorable court mentioned that freedom of expression guaranteed under Article 19 of the constitution also extended to the Internet.

• Citing the case of Indian Express vs Union of India, 1985 the Supreme Court ruled that the freedom of expression protects the freedom of print media. In Odyssey Communications Pvt Ltd. Vs Lokvidayan Sanghatana, 1988 it was held the right of citizens to screen films was a fundamental right under the freedom of expression. Hence, online information is also an important means of diffusing information online.

• The court also discussed the extent of restrictions on the freedom of speech. India’s constitution allows the government to restrict the freedom of expression under Article 19(2) as long as the restrictions were prescribed by law, were reasonable, and were imposed for a legitimate purpose.

• Answering the question regarding whether the ban of the internet was prohibited or not, the court first took into consideration the geo-political context and the history of Jammu and Kashmir. It agreed with the government that the former state had been combatting terrorism and that modern terrorists rely heavily on the internet allowing them to secure funds, spread propaganda, spread false information, and recruit new people. It specifically noted that the war on terror was unlike territorial fights and transgressed into other forms affecting normal life and couldn’t be treated as a normal situation.

• The court stressed that the doctrine of proportionality was to be kept in mind and it is the key to ensuring that the restrictions are not beyond what is necessary. The court outright rejected the state’s justification for a total ban on the Internet on the grounds that it lacks the ability to selectively block Internet services. 

• The honorable court also recognized the validity of the government’s argument and how the internet could be used to violate the sovereignty and integrity of India. Thus, necessitating the extent of restriction that can be imposed by the government.

• The Telegraph Act of 2017 allowed the government to restrict telecom services and access to the Internet subject to safeguard the citizens when deemed necessary. Section 5(2) of the Telegraph Act permitted suspension orders only in a situation of public emergency or in the interest of public safety. The Act doesn’t define the two terms and hence the court said this needs to be determined on a case-to-case basis.  

• Thus, the court declared this being a drastic measure must be considered only if ‘necessary’ and ‘unavoidable.’

• The Supreme Court held that the Telegraph Act of 2017 didn’t indicate the maximum duration of the suspension. It recommended the setting up of a review committee to solve this problem as indefinite suspension was impermissible.

• The court noted that Section 144 is one of the mechanisms that can enable a state to maintain public peace and can be invoked in urgent cases of nuisance or perceived danger. Thus, allowing the state to use it as a preventive measure. It was also pointed out that the section contained several safeguards to prevent its misuse.

• And section 144 could only be applied in the case of ‘public order’ and not ‘law and order.’

• The court also mentioned the importance of the freedom of the press. 

DEFECTS OF LAW

• The Telegraph Act of 2017 didn’t indicate the maximum duration of the suspension. It was recommended the setting up of a review committee to solve this problem as indefinite suspension was impermissible.

•  The law doesn’t define the terms ‘public order’ and ‘public safety’.

INFERENCE

In totality, the court held and recognized the importance of the right to freedom of speech and press and clearly stated that services like the Internet can never have an indefinite suspension. It emphasized the role of the Internet in modern-day trade and profession and held that access to it is also an important right.

Kanishk Goyal

Hidayatullah National Law University, Raipur