The judgement of Anuradha Bhasin Vs. Union of India is a landmark judgement by the Supreme court of India, which was pronounced on 10th January, 2020. The case formed its base in the place renowned as the “Paradise on Earth”, that is Jammu & Kashmir. The ruling was related to the suspension of internet and restrictions on movement in the region stated on 4th August, 2019. The court upheld the constitutional protection over the freedom of expression online also by in the use of internet. Liberty and Security were the two edges of the same sword, which could seemingly injure the other part when not construed harmoniously. The pendulum of preference should not be pushed or held towards a particular extreme. These should be construed peacefully, ensuring security and liberty.
FACTS OF THE CASE
Jammu & Kashmir had always been a territory of dispute between Indi and Pakistan. The state had initially enjoyed the special status, as according to Article 370 of The Constitution of India, where it was allowed to have its own constitution, and no other citizen who would have belonged to any other state were not allowed to buy any sort of property in the state. On the day of 5th August, the special status was stripped down by the Constitution (Application to Jammu and Kashmir) Order, 2019, which made it subjected to every provision of The Constitution of India, similar to that of all other states of the country. Following which, there was restrictions imposed on the freedom of movement and also on their freedom of expression over online communication (especially on the usage of internet). The authority to impose the restrictions was said to derive its validity from the Section 144 of the Criminal Procedure Code, 1973.
Pertaining to the order, tourists and pilgrims were advised to leave the state, schools and offices were closed, and mobile phone networks, internet services and landline connectivity were shutdown, with restrictions on freedom of movement and expression. The writ petitions were raised by the Journalist Anuradha Bhasin challenging the validity of the order and to quash the order, stating that the shutdown was violation of Article 19 was not reasonable and proportionate to the objectives of why it is passed. Another petitioner was Mr. Ghulam Nabi Azad, who was the Member of Parliament from the opposition party, raising concern that the restrictions were not justifiable and they were meant to disturb the peace. It also restricted the right to trade, and hindered him as a political representative from communication with his constituents. These petitions were raised under the Article 32 of The Constitution of India.
ISSUES RAISED
- Whether the exemption can be claimed from the government in producing the restriction order with having authority from the Section 144 of The Criminal Procedure Code, 1973?
- Whether the Fundamental Rights under The Constitution of India, sheds its scope over protection of the freedom of speech and expression, and in the freedom to practice any profession and also over carrying any occupation or trade over internet?
- Whether the access to internet can be prohibited solely by government action?
- Whether the freedom to movement can be restricted under the imposition of The Section 144 of The Criminal Procedure Code, 1973?
- Whether these restrictions curtailed the freedom of press of the petitioner Anuradha Bhasin?
CONTENTIONS OF THE PETITIONERS
- The contention of the petitioner Mr. Ghulam Nabi Azad stated that the restrictions were not reasonable and it hindered him as a political representative from communicating with the people of his constituency, as also restricted the fundamental right to trade.
- The counsel who appeared for the petitioner Anuradha Bhasin, contended that petitioner being a chief editor in a major newspaper, the order of restriction has led to the curtailment of the right to press, and this was not subject to reasonableness or proportionality. The manner in which the internet need to restricted is provided in the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017, but the order was not passed in compliance to the procedures prescribed under the Rules.
- He further supplemented that such an order can only be passed under the Section 144 of The Criminal Procedure Code, 1973, when there is a likelihood for the danger to law and order, but there has been nothing of that sort has arisen.
- It was contended that the privilege of non-production of the order could not be made by the state. Such order can be only in cases of emergency, it should be specifically passed against a specific set of people who is probable to disturb the peace of society and not towards the general public. It was indicated that the measures need to be less restrictive, in cases where it is essential, allowing people to carry on their regular days of work. The orders should be objective and should not be based on guesses.
- It was stated that the orders passed must be temporary, the five essential features to uphold the action of the state constitutionally were put forward, being support of law, purpose of the act being legitimate, necessity, connection with the objective and the test of proportionality.
CONTENTIONS OF THE RESPONDENTS
- The counsel for the respondent submitted the back ground of the state being exposed to terrorism and internal militancy, the orders are only preventive measures, in the circumstances, as otherwise it would have led to violent consequences.
- The stated that the primary duty of the state was to ensure the security and protection of the citizens, the state has always been a victim of aggression due to terrorism. The abrogation of the Article 370 has made the state to enjoy with all the people friendly laws as other states are. Public movement was never restricted entirely, and it was only a temporary measure, and they are in the stages of relaxation, and also the region of Ladakh was not posed to restrictions.
- They stated that all the essential facilities were provided to the populace. The order was only passed to prevent the provocative speeches and messages as a measure in maintenance of the safety and security of the state.
- The internet was restricted only in respect with the objective being to curtail violence, the object being bona fide, everything was done in accordance with the application of law. Newspapers can not be made parallel to internet, the former being one way communication, and latter being two way and leads to the transmission of messages at the fastest pace.
- The measure was only passed in respect of misleading messages online, and the orders were passed adhering to the procedures of the Suspension Rules.
RATIONALE
The court held that the orders that had been passed and that are to be passed under the Section 144 of The Criminal Procedure Code, 1973 need to be published, I order for person affected by it to challenge it before the courts of law. The freedom of speech and expression and the freedom to carry on any profession, trade or business online through internet was granted constitutional protection. They upheld as also according to the Suspension Rules, internet restriction could be only temporary and not permanent. Every order passed in this respect should adhere to the procedures under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. The services which were restricted through internet should be restored immediately when they are found to be indefinitely essential. Every order can be subjected to judicial scrutiny and they should be subjected to the test of proportionality and reasonableness.
The objective of the court was to maintain a balance between the liberty and security in the best possible manner. The state had refused to produce the restrictive orders, which they are asked to produce, as by the case of Ram Jethmalani v. Union of India, the state is under the mandate to produce the order, in order to invoke the remedy under the Article 32. The right to information is an indispensable principle, directing towards democracy. The state seeking privilege in this matter was not justifiable.
The restrictions being violative of fundamental rights, the freedom of speech and expression and the freedom to carry on any profession, trade or business online through internet was granted constitutional protection, In the case of Modern Dental College & Research Centre v. State of Madhya Pradesh, it was provided were rights are not absolute and are interconnected, they must be construed in such a way that they co-exist one another. The restrictions should be subjected to the test of proportionality as in how it could be viewed to test its constitutionality.
The internet shutdown was posed towards the legislations, and it was declared that such a restriction was permissible by law, but only in cases of public emergency as according to the Telegraph Act and according to the Suspension Rules, though the period of suspension was determined, the court stated that it could not be indefinite. The court upheld that the Section 144 of The Criminal Procedure Code, 1973 could be passed also in apprehension of danger but it not be in manner of suppressing legitimate expression. In regards to the curtailment of Freedom of Press, as the petitioners had resumed their work and also newspapers were circulated even during the order was in force. It doesn’t mean to a complete curtailment of their freedom of Press.
LEGAL PROVISIONS
- Article 370 of The Constitution of India, which provided the region with a special status was abrogated.
- The order was passed under the Section 144 of the Criminal Procedure Code, 1973, this can lead to restrictions in cases of danger to law and order which is also restrictive of fundamental rights, with provoking restrictions on freedom of movement, public assembly, speech, expression, with internet shutdown. Indefinite restrictions under this section however unconstitutional.
- Article 19 which provided protection over the freedom available on to the citizens were violated, Right to Information is a part of the Article 19 by being part of the freedom of speech and expression.
- Freedom to trade and commerce by medium of internet is protected by the constitution under Article 19(1)(g) subject to restrictions under Article 19(6).
- The petitions were raised against the invocation of Article 32.
- Section 7 of the Indian Telegraph Act, 1885 provided the authority for the restriction of internet services in concern of safety and Section 5(2) of the Act allowed for the internet shutdown in period of emergency.
- Section 69A of the Information Technology Act, 2000 with Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 allowed for the blocking of access to information.
INFERENCE
The indefinite suspension of internet services is considered to be illegal under the Indian. Internet shutdowns are permissible it was due to a bona fide intention of the security of the populace. But it should be temporary and the services provided to all essential services such as that of the hospitals need to restored immediately. These orders at aspect would be subjected towards the test of proportionality based on the outlines of whether it is legitimate, necessary, whether there is any other least restrictive measure, alternative measures and them being liable to be subjected to Judicial review. The reasons should be published as why the restrictions were imposed.
Restrictions which are imposed under Section 144 of The Criminal Procedure Code, 1973 could not suppress legitimate expression. Freedom of expression and freedom to practice trade and commerce through the internet medium is constitutionally protected. Although the court upheld the constitutional validity and protective, it further imposed restrictions on them being restrictive to the measures to be taken in view of national security. The did not entirely lift the restriction imposed on the populace, but ordered the competent authorities and the government to review and subjected them to scrutinize the decision as whether they would be necessary.
NAME: MAGIZHINI M
COLLEGE: The Tamilnadu Dr. Ambedkar Law University, School of Excellence in Law.