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Case Comment: Anuradha Bhasin V. Union of India

Case Details

  • Court: The Supreme Court of India
  • Date of Judgement: 10 January, 2020
  • Citation: AIR 2020 SC 1308[1]
  • Civil Writ Petition No: 1031 OF 2019
  • Bench: Justice N.V. Ramana, Justice Subhash Reddy and Justice B.R. Gavai

Introduction
It is inherent responsibility of the national leaders to create a safe heaven for its citizens by enforcing a certain level of security, while simultaneously upholding the standard of freedom that the public has grown to expect. The case is a very landmark and important one, since it served the purpose of making a fine balance between adequate national security and sufficient constitutional liberty.

The Supreme Court’s ruling in this case helped reinforcing the rights of people of Jammu and Kashmir and served as a reminder to the state regarding the importance of due diligence.

Facts of the Case

  • Jammu and Kashmir, an Indian territory had its own constitution and unique status under Article 370 of the Indian Constitution. Owing to an issue ordered by the Indian Government on August 5, 2019, Jammu and Kashmir lost its special status that it had held since 1954. The order called Constitution (Application to Jammu and Kashmir) Order, 2019, made the region fully subject to all provisions of the Indian Constitution. The region saw a great deal of political disturbance and instability after the above-mentioned event.
  • On 4 August, 2019, there was an apprehension of havoc to be caused by the general public of Jammu and Kashmir, which was assumed as a threat to public order and security of the state. In the view of this, the state imposed certain restrictions in the region. The freedom of movement and internet communication methods become subject to a number of restrictions imposed by the government.
  • On August 2, 2019, the Civil Secretariat of the Home Department issued a directive to travellers and pilgrims participating in the Amarnath Yatra to depart from Jammu and Kashmir. The workplaces and schools were also instructed to stay closed until any additional information was given.
  • Furthermore, the administration was so concerned that it was decided that no market location could let even two individuals to congregate or stand together. In light of this, the District Magistrate (DM) of Jammu and Kashmir enforced limitations under section 144 of CRPC, prohibiting public assembly and movement in order to prevent a breach of the state’s peace and tranquilly.[2]
  • Journalists’ freedom of movement was restricted, and this was contested under Article 19 of the Indian Constitution. Additionally, the Hon. Supreme Court of India heard a challenge to the legitimacy of blocking the internet within the State of Jammu and Kashmir.

Issues Raised

  • Whether the action taken by the government to cut off internet access is valid
  • Whether the limitations imposed by the government under section 114 CrPC are valid
  • Whether the freedom of press of one of the Petitioners was violated due to the restrictions?
  • 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 comes under Part II of the Constitution as a part of the fundamental rights
  • Whether the government can argue that it is not required to produce all of the orders issued under Section 144 of the Criminal Procedure Code and additional orders issued under the Suspension Rules[3]

Contentions of Both Parties

Petitioners’ Contentions

  • The petitioner, Ms. Anuradha Bhasin, the Executive Editor of the Kashmir Times Srinagar Edition, said that print media has come to a complete standstill without the internet, which she claimed is essential for modern press. She stated that she has not been able to publish her newspaper since August 6th, 2019.
  • It was contented that certain trades rely only on the internet. The Indian Constitution’s Article 19 (1) (g) protects the freedom of trade and commerce over the internet, subject to certain limitations outlined in Article 19 (6) of the Indian Constitution.[4]
  • Neither the state-imposed limitations under section 144 nor their goals were appropriate or consistent with the public policy. “Public order” is distinct from “law and order”. The respondents contended that the imposition of the limitations was necessary because law and order was in danger. Prior to the section 144 order being passed, neither of those two expressions was in danger. The respondents further contended that although these limits are temporary in nature, they have been in effect for more than a hundred days.
  • A Member of Parliament from the State of Jammu and Kashmir, Mr. Ghulam Nabi Azad, filed a second Writ Petition, arguing that the restrictions under section 144 could only be applied to a particular group of persons and not to the entire State of Jammu and Kashmir. Less stringent restrictions should be implemented by the government, since it also has to balance India’s residents’ fundamental rights while maintaining public safety.

Respondents’ Contentions

  • contended that consideration should be given to the history of terrorism in the State of Jammu and Kashmir. The background facts and circumstances make it clear that the directions under Section 144, CrPC are necessary when there can be severe violence if the government did not act in response to these procedures.
  • Actions along these lines were made by the government in 2016 following the death of a terrorist, which was put up as an example.
  • The State of Jammu and Kashmir’s Solicitor General, Mr. Tushar Mehta, stated that the facts cited by the Petitioners were false since they lacked accurate knowledge of the actual situation on the ground in the State of            Jammu and Kashmir
  • It was untrue of the petitioners to claim that there were restrictions on public movement. In actuality individual mobility had never been restricted. Furthermore, schools have reopened after first being closed. Restrictions were imposed and are now gradually being loosened based on the facts, conditions, and needs of each location.
  • The Ladakh region has never been subject to restrictions. This fact shows that the cops on the ground applied their minds when giving orders, and contrary to what the petitioners claim, there was no widespread crackdown.

Judgement and Rationale

  • The State was required to present the orders establishing the restrictions. According to one interpretation of Article 19 of the Indian Constitution, the right to knowledge is a crucial component of the freedom of speech and expression. The Court also stated, ” A democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know.”
  • The Court reaffirmed that the internet was covered by the freedom of expression granted by Article 19 of the Indian Constitution.
  • Trade and commerce are greatly aided by the Internet, with several enterprises being entirely reliant on it. Consequently, Article 19(1)(g) of the Constitution guaranteed the freedom of trade and commerce via the internet, subject to the limitations outlined in Article 19(6).
  • It was held in one of the cases earlier, that people’s access to screen films constituted a component of their fundamental right to free speech.[5] Since the internet has grown to be a significant medium for disseminating information, it is essential to the enjoyment of the freedom of speech and expression provided by Article 19(1)(a). However, it is also subject to restrictions under Article 19(2) of the Constitution.
  • The rightful exercise of basic rights cannot be prohibited under the Criminal Procedure Code, 1973, section 144. These authorities ought to be used to address situations that could hinder, irritate, or harm people. Additionally, the judiciary has the power of scrutiny over it.

Defects In the Application

The court’s ruling declared the government’s internet prohibition to be unconstitutional, but it left the internet restrictions in place. The Supreme Court upheld the invalidity of the Section 144 limitations, but it did not declare the curfew order to be void; rather, it delegated the task of determining the curfew’s duration and the appropriateness of its measures to the review committee. Although it cannot be said that the petitioners’ case was successful, the Supreme Court’s decision was correct in expanding the definition of freedom of speech and expression to include the right to access the internet, which can only be restricted in cases involving national security.

Inference

While the decision may not provide immediate relief to the people of Jammu and Kashmir, it is a step in the right direction towards guaranteeing accountability, proportionality, and transparency in Internet shutdowns throughout India. Even though the ruling’s context and facts are tied and limited only to the situation in the state of Jammu and Kashmir, The Court’s observations are highly relevant to the whole of India and serve as a crucial reminder of importance of due process and constitutionalism. According to the ruling, the government was clearly to be held responsible for the arbitrary internet suspension. It has also set important guidelines that must be adhered to as India goes forward. This is an important turning point for the people of Jammu and Kashmir, and the whole of India.

Author –

Sanan Bansal

Dr B R Ambedkar National Law University


[1] Full Judgement https://main.sci.gov.in/supremecourt/2019/28817/28817_2019_2_1501_19350_Judgement_10-Jan-2020.pdf (last visited Nov. 19, 2023)

[2] CrPC, § 114, No. 2, Acts of Parliament, 1974 (India)

[3] Anuradha Bhasin v UIO Judgement https://main.sci.gov.in/supremecourt/2019/28817/28817_2019_2_1501_19350_Judgement_10-Jan-2020.pdf (last visited Nov. 19, 2023)

[4] Constitution of India

[5]Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410

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