DATE OF THE CASE: 10 January, 2020
APPEALLANT: Ms. Anuradha Bhasin
RESPONDENT: Mr. K.K. Venugopal, learned Attorney General for Union of India and Mr. Tushar Mehta, Solicitor General for the State of Jammu and Kashmir[i]
BENCH/JUDGES: N.V. Ramana, V. Rama Subramanian
LEGAL PROVISIONS:
Constitution of India: Article 19(1)(a)
Article 19(1)(g) Code of Criminal Procedure, 1973: Section 144
Information Technology Act, 2000
Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009
The Telegraph Act, 1885
The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
FACTS:
- The problem arose when the Civil Secretariat, Home Department, and Government of Jammu and Kashmir issued a security advice advising people to cut short their stays and arrange secure travel plans to return home.[ii]
- Then, until further instructions, offices and educational institutions were likewise closed. Internet, mobile, and landline connectivity were all suspended on August 4, 2019, pending additional instructions.
- On August 5, 2019, the Indian President issued Constitutional Order No. 272, removing Jammu and Kashmir from the special status it has held since 1954 and bringing the area fully under the Indian Constitution.
- Due to the current situation, the District Magistrate issued an order banning public gathering and movement on the same day, alleging a disturbance of peace and tranquility in violation of Section 144 of the CrPC.
- Since Article 19 of the Constitution guarantees the right to freedom of expression as well as the right to engage in any profession or trade, this led to limitations on journalists’ freedom of movement, which were contested.
- In this situation, the constitutional provision of Article 32 is used in the Supreme Court to challenge the legitimacy of the internet shutdown and movement limitations.
ISSUES RAISED:
- 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?[iii]
- Whether the imposition of restrictions under Section 144, CrPC were valid?
- Whether the Government can claim exemption from producing all the orders passed under Section 144, CrPC?
- Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?[iv]
- Whether the Government’s action of prohibiting internet access is valid?
CONTENTIONS:
Arguments from the Petitioner’s Side:
[v]The petition, W.P. (C) No. 1031 of 2019, was submitted by Ms. Anuradha Bhasin. She promoted internet as being necessary for the modern press as the executive editor of the Kashmir Times Srinagar Edition. Since the newspaper had stopped being published as of 06.08.2019, the petitioner argued that print media could disappear without internet access.
The government failed to provide a compelling justification for the order’s passage, as required under the Suspension guidelines, according to the petitioner’s contention. She further emphasised that the justification for the passage of such directives was solely based on the unfounded fear that law and order would be threatened, which was untrue.
The petitioner’s argument was that the government must find a method to strike a balance between the steps required to safeguard national security on the one hand, and the rights of the people on the other. Nevertheless, the state is using it as justification for enacting the law restricting citizens’ liberties. However, they are in place for more than a hundred days despite his assurance that the limits will only be in place temporarily.[vi]
In order for natural justice to function, order must be published and made available to the broader public. For failing to provide such judgments, the state cannot assert any sort of privilege in front of the court. Additionally, the court affirmed the proportionality test, which determines whether or not constraints placed on people’ fundamental rights are justified.
W.P. (C) No. 1164 of 2019 [vii]
Member of Parliament Mr. Ghulam Nabi Azad filed the subsequent petition W.P. (C) No. 1164 of 2019, 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 he should impose restrictions against a small group of people who disregard the peace rather than on everyone.
Arguments from the Respondent’s Side:
On the other hand, Mr. K.K. Venugopal, the Attorney General for the respondent side, argued that the militancy of Jammu and Kashmir must be taken into account. His contention that the state’s circumstances were what caused the order to be passed was supported by the facts he presented in court. The only justification was to take precautions in light of the history of both internal and external militancy since failure to do so could result in extreme barbarism.
He made a comparison between the current situation and the events of 2016, when a terrorist was murdered and officials took similar measures.
The Solicitor General, Mr. Tushar Mehta, stated that the objective was to protect the citizens, which is the state’s first priority. The Magistrates argued that the prior relaxation that was imposed based on a perception of threat has almost completely taken place. The petitioner’s workplace is among those with operating televisions, radio stations, and newspapers. For the people’ safety, the orders issued under Section 144 of the CrPC may be preventative. He defended it by stating that it is impractical to separate agitators from peacemakers. In Jammu and Ladakh, he claimed, internet access was never blocked. Despite this, it is possible to send and receive messages on social media that aim to stir up trouble. In certain places, internet censorship targeted not only social media but also the dark web, which makes it easier to buy and sell illicit firearms. He deduced that every order was passed in compliance with the Suspension Rules and was being closely examined.
RATIONALE:
The Supreme Court ruled that Article 19(1) of the Constitution includes freedom of expression on the internet as one of its essential components (a). They emphasised the previous judgement in Indian Express v. Union of India, which established freedom of the printed word to be a fundamental right under Article 19(1). (a). Article 19(1)(a) of the Constitution protects the freedom of speech and expression, and 19(1)(g) of the Constitution protects the right to engage in any commerce or activity on the internet. This decree would require that any limitations on internet access be reasonable and adhere to the guidelines outlined in Articles 19(2) and 19(6) of the Constitution.
The Court rejected the claim, stating that press freedom is unquestionably one of the distinguishing qualities of a democracy and is securely guaranteed by the Constitution.
The Supreme Court ruled that valid expression of opinion, complaint, or exercise of any democratic right cannot be suppressed by the use of power. 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 emphasised that both procedural and substantive considerations must be made in order to determine whether the internet shutdown was constitutionally legal. 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. Although it is necessary to determine whether an emergency exists in order for such an order to be passed.
The maximum duration of a suspension order was not stated specifically in the suspension guidelines. Therefore, it is up to the Review Committee to decide how long it will last and to make sure that it doesn’t go beyond what is required.
DEFECTS OF LAW:
According to Article 19(1)(a): The right to freedom of speech and expression belongs to every citizen.
Code of Criminal Procedure, 1973, Section 144: Authority to issue an order in circumstances of imminent danger or nuisance. It is applied in extreme situations where there is a threat to human life or property, or if there is an immediate disturbance. Internet shutdowns and restrictions on telecom services have frequently been enacted under Section 144.
INFERENCE:
The court held that the government could not raise an exemption for presenting a court order made in accordance with Section 144 of the CrPC. According to the court, freedom of speech & expression and the freedom to engage in any profession, occupation, or trade on the internet are all fundamental rights protected by Part III of the Constitution because they are crucial to modern life.[viii]
The court also ruled that the ban on using the internet will only be valid under specific conditions; otherwise, it will be lifted. Since these restrictions have an impact on people’s Fundamental Rights, the court mandated that the proportionality test be followed in order to ensure that natural justice has not been violated.
The supreme court did not provide an instant remedy for anyone affected by these orders, but it did create rules for future suspension orders and how they should be used in order to prevent future abuses of power by the government. This serves as a remedy to further issues.
Author: Aryan Maurya
BA.LLB Hons. 1st Year
Dharmashastra National Law University, Jabalpur
[i] https://blog.ipleaders.in/anuradha-bhasin-v-union-of-india-case-analysis/
[ii] Anuradha Bhasin V. Union Of India – 2020 SCC ONline SC 25
[iii] https://www.legalserviceindia.com/legal/article-4819-anuradha-bhasin-vs-union-of-india-2020-a-case-comment.html
[iv] https://www.legalserviceindia.com/legal/article-4819-anuradha-bhasin-vs-union-of-india-2020-a-case-comment.html
[v] https://www.legalserviceindia.com/legal/article-4819-anuradha-bhasin-vs-union-of-india-2020-a-case-comment.html
[vi] case analysis written by Rishita Gupta and Varsha Agarwal, from Dr Ram Manohar Lohiya National Law University, Lucknow On blog.ipleaders
[vii] https://www.legalserviceindia.com/legal/article-4819-anuradha-bhasin-vs-union-of-india-2020-a-case-comment.html
[viii] indiankanoon.org/doc/82461587/