ANURADHA BHASIN    VS    UNION OF INDIA

 WP (CIVIL) NO.1031 OF 2019

AIR 2020 SC 1308

Facts :

The Indian territory of Jammu and Kashmir, which borders Pakistan, has been the focus of an ongoing conflict between the two nations for many years. The territory had its own constitution, special status under Article 370[1]of the Indian Constitution, and property ownership by Indian citizens of other states was prohibited. Jammu and Kashmir lost its special status that it held since 1954 when the Indian government released the Constitution (Application to Jammu and Kashmir) Order, 2019, which fully subjected the region to all provisions of the Indian Constitution. This order was issued on August 5, 2019. In August 2019, the Civil Secretariat of the Home Department, Government of Jammu and Kashmir, issued a few guidelines for the general public, asking tourists to cut down on their stay and make plans for leaving the State of Jammu and Kashmir. Furthermore, educational institutions and offices were asked to remain shut until further orders. On August 4, 2019, landline connectivity, cell phone networks, and internet services were all terminated throughout the valley. A Constitutional Order No. 272, issued on August 5, 2019, by the President of India, modified article 360 of the Indian Constitution and applied all provisions of the Indian Constitution to the State of Jammu and Kashmir. Subsequently, the District Magistrate (DM) of Jammu and Kashmir enforced limitations vested under Section 144 of  The Code of Criminal Procedure , prohibiting public assembly and movement in order to prevent a breach of the state’s peace and tranquility. Ms. Anuradha Bhasin, the Executive Editor of Kashmir Times, filed a petition in protest of the limitations placed on their freedom of movement and communication, which she claimed hindered their ability to practice their profession. She sought for a writ to strike down the irrational restrictions and guarantee that media professionals’ rights and means of reporting and publishing news should not be unreasonably restricted. Another subsequent petition was filed by Mr. Ghulam Nabi Azad, MP, who is a member of the largest opposition party in the Upper House. In this petition, he argued that the state cannot claim an exemption from producing orders because doing so is a requirement of natural justice and the public’s right to information. In line with Article 356[2] of the Indian Constitution, he also demanded that these restrictions be clarified. Journalists’ freedom of movement was restricted, and this was contested under Article 19[3] of the Indian Constitution, which protects the right to free speech, expression, and the ability to engage in any profession or trade. Additionally, under article 32[4] of the Indian Constitution, the Hon. Supreme Court of India heard a challenge to the legitimacy of blocking the internet and restricting movement within the State of Jammu and Kashmir.

Issues Raised:

  • Is it possible for the government to argue that it is not required to produce all of the orders issued under Section 144 of the Criminal Procedure Code and other orders issued under the Suspension Rules?
  • Does Part III of the Constitution guarantee the freedom of speech, expression, and freedom to practice any profession as well as the freedom to engage in any kind of employment, trade, or business online?
  • Is it legitimate for the government to prohibit internet access?
  • Was it lawful to impose restrictions under Section 144 of the Criminal Procedure Code?

Contentions :

Arguments by Petitioner

The petitioner contended that print media has come to a “grinding halt” without the internet, which is crucial for the modern press. Additionally, it was argued that since August 5, 2019, the petitioner has been unable to perform her job or pursue her profession because of a number of restrictions that prevented her from publishing her newspaper. It was argued that certain trades are entirely dependent on the internet, and that as a result, the freedom to engage in any kind of profession, trade, or occupation is compromised by even the slightest intervention. The freedom to trade over the internet boosts consumerism and gives consumers a greater variety of products and services to choose from, expanding the pool of viable options in today’s society. Article 19(1)(g) of the Indian Constitution guarantees the freedom of trade and commerce over the internet, subject to reasonable limitations. Restrictions imposed by the state under Section 144 were not proportionate nor reasonable in relation to the objectives of public policy, which negatively impacted the public welfare of Jammu and Kashmir residents by excluding them from basic services. It was observed that “public order” and “law and order” are not the same things. The argument was that the restrictions were only meant to be temporary because neither of the two expressions was in danger prior to the section 144 order, but they have been in place for more than 100 days, pertaining to an indefinite period of time, which is against the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, meaning that there is no justification for the restrictions. Subsequent petitioner Mr. Ghulam Nabi Azad further contended that since the state’s failure to produce an order is a fundamental component of natural justice, the state cannot claim any privilege before the court. Additionally, it was mentioned that only a few circumstances allow for the declaration of a state of national emergency, and in this instance, neither “internal disruption” nor “external aggression” exist, in accordance with Article 356 of the Indian Constitution. It was further argued that since the right to the Internet is deemed inclusive within the scope of Article 21[5] of the Constitution as established in Faheema Shirin v. the State of Kerala, there was no review committee established to analyze the legality of the imposed restrictions or the duration of the shutdown that affected freedom of speech and expression, freedom to carry out trade, freedom of occupation and profession, right to health, and right to education.

Arguments by the Respondent

Attorney General Mr. K.K Venugopal, representing the respondent, argued that due attention should be given to the fact that Kashmir has a militancy problem. The historical context played a crucial role in establishing whether the limitations were lawful. According to him, the order was issued with regard to the security of the country, the state at the time, the prevention of terrorist acts, cross-border militancy, and other activities that may disrupt public order. The only justification for taking precautions was awareness of the past of both internal and external militancy. It was asserted that, in comparison with newspapers, the internet is extremely quick and helpful for communication on both sides. It has also been used in the past to spread false information and encourage violence, as evidenced by the use of the internet as a weapon prior to the repeal of Article 370. As a result, it was also argued that the limitations were based on the perception of a threat and that they were also relaxed in situations where they were not necessary, such as in the cases of Jammu and Ladakh, demonstrating that suspension regulations weren’t enforced arbitrarily. The goal was to censor not just social media but also the dark web, which facilitates the buying and selling of illicit ammunition. It was determined that the directions that were issued were subject to a thorough examination by the appropriate authority and were part of a process that was regulated by suspension rules.

Rationale :

The Supreme Court ruled that one of the essential and inclusive components of Article 19(1)(a) is the freedom of speech and expression on the internet. The case of Indian Express vs Union of India established the essential right to freedom of print media under both Article 19(1)(a) and Article 19(1)(g). As a result, the Court adopted the position that violating the freedoms of speech, expression, and the practice of one’s profession, trade, or occupation—all of which are specifically stated in Part III of the Indian Constitution—would go beyond the boundaries of the document. According to Article 21, the right to the Internet was regarded as a fundamental right and cohesive with the rights to privacy and education. Articles 19(2) and 19(6) of the Constitution specify the limitations that the Government may impose on the interests of the country as a whole. The Apex Court held that terminating internet service would be unlawful if the reason for the indefinite duration of the suspension was a legal loophole relating to the order that was put into effect. The Honorable Judges emphasized how crucial it is that the Order pass the requirements of necessity and proportionality. The Court dismissed the argument regarding whether press freedom had been violated because the petitioner had already started publishing again and the claim could not be supported by the evidence at hand. The Court held that a simple disruption of the state’s law and order may not always result in a violation of public order. The Court also held that in order to protect the natural justice principles, the State had to produce the orders imposing the restrictions. Referring to the precedent set by Ram Jethmalani v. Union of India[6] , the Court ruled that the State was required to provide information in order to fulfil the Constitution’s right to a remedy. The Court further held that in order to assess whether the internet shutdown was constitutionally legal, it was necessary to take into account both procedural and substantive factors. Suspension orders were only permissible under Section 5(2) of the Telegraph Act in the event of a public emergency or for the public’s safety. Although a determination of emergency is necessary for passing such an order, it was not satisfied in this instance. The maximum duration was not specified in the suspension rules, and the Review Committee was required to ensure that it did not exceed a certain amount of time. If it did, this would amount to an a permit to violate the right to the Internet, and the provisions would need to be reviewed. The geopolitical factors of the State of Jammu and Kashmir were extensively deliberated by the Court, along with the reasonable restrictions referenced in Articles 19(2) and 19 (6). citing Subhash Chandra Agarwal v. CPIO[7] as a source . “Proportionality” is defined by the Court as “the condition in which neither right is restricted to a greater than necessary to fulfill the legitimate interest of the contravening interest in question.” The Court focused on this concept. The Court held that the orders needed to be reviewed and conform to the “rule of law.” The Court held that since the internet is so important to modern society and that imposing restrictions on it violates people’s rights, it is necessary to apply the proportionality test and ensure that natural justice has not been violated. The ruling broadened the meaning of the right to free speech and expression by incorporating the ability to use the internet, and it shed light on how Article 21 of the Constitution defines “personal liberty.”

Defects of the Law:

The Court did not immediately alleviate the restrictions on internet access and travel for the citizens impacted by the orders; instead, it established guidelines for future suspension orders and their implementation to stop the misuse of state authority and set the stage for future resolution of issues pertaining to individual rights and national integrity. The Court had to determine the boundaries of reasonable restrictions by evaluating the extent and scope of reasonability from a strict peripheral perspective, in compliance with the rule of law and judicial review.

Inference:

The Hon. Supreme Court of India’s verdict in the case of Anuradha Bhasin V. Union of India has been in accordance with the fundamental rights established by the Indian Constitution. The well-crafted ruling has effectively established a standard for evaluating whether or not the freedoms of speech, expression, and the practice of any profession, trade, business, or occupation through the internet are Fundamental Rights that are both protected and guaranteed by Article 19 of the Indian Constitution.

MRIGHA MAHAJAN

THE LAW SCHOOL, UNIVERSITY OF JAMMU


[1] INDIA CONST. art. 370

[2] INDIA CONST. art. 356

[3] INDIA CONST. art. 19

[4] INDIA CONST. art 32

[5] INDIA CONST. art. 21

[6] Ram Jethmalani v Union of India, (2011) 8 SCR 725, (2011) 8 SCC 1

[7] CPIO V Subhash Chandra Aggarwal , 2019 (16) SCALE 40