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CASE COMMENTARY ON ANURADHA BHASIN V UNION OF INDIA, AIR 2020 SC 1308

Case Comment, Publications

BENCH: Justice N.V. Ramana, Justice B.R. Gavai, and Justice Subhash Reddy 

JUDGEMENT:10 January 2020

FACTS OF THE CASE

In January 2019, the Jammu and Kashmir Home Department released a warning urging tourists to shorten their stay in the state and organize for a safe return. The administration then issued directives for the state’s offices and educational institutions to close. In the end, an order to suspend internet services was issued on August 4, 2019. Until further notice, internet access was restricted. All of the Indian Constitution’s provisions were extended to the State of Jammu and Kashmir the next day when the President issued Constitutional Order No. 272. In order to stop terrorist assaults and uphold peace and order in the area, the government justified the action.

The order revoked the special status of Jammu and Kashmir and changed Article 370 of the Indian Constitution. The former state of Jammu and Kashmir was given autonomy within the Indian Union by Article 370. Under this Constitutional provision, the Indian government and political leaders in Jammu and Kashmir negotiated the state’s political status. 

The Magistrate then issued an order under Section 144 of the Code of Criminal Procedure, 1973, prohibiting public gatherings on the grounds of suspicion of a threat to public order and peace. The executive editor of the Kashmir Times newspaper, Anuradha Bhasin, petitioned the Supreme Court to declare the communication ban to be unconstitutional. She claimed that the limitations were against the essential liberties of press freedom, access to information, and freedom of speech and expression, all of which are protected by Articles 19(1)(a), 19(1)(g), and 21 of the Constitution. The order’s restrictions prevented journalists from adequately reporting on governmental matters. In light of this, the petitioners petitioned the Supreme Court of India under Article 32 of the Constitution, challenging the constitutional validity of the limitations on public movements and suspension of internet services.

ISSUES RAISED

The key issues raised by the court were:

I. 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?  

II. Whether the Government’s action of prohibiting internet access is valid? 

III. Whether the imposition of restrictions under Section 144, Cr.P.C. were valid?  

IV. Whether the freedom of press of the Petitioner in was violated due to the restrictions? 

CONTENTIONS

Petitioners

The petitioners’ main arguments were that the blanket internet suspension order infringed upon the freedom of press, which is a component of the freedom of speech and expression protected by Article 19(1)(a) of the Constitution, and the freedom to engage in any trade, business, or profession as guaranteed by Article 19(1)(g) of the Constitution. Furthermore, the petitioners argued that the Telecom Services (Public Emergency or Public Service) Rules, 2017 were not followed by the internet suspension orders. According to Rule 2(2), the internet suspension order must clearly describe the grounds for the internet suspension.They also argued that the government had not provided any reasons for the internet suspension nor did it fix any deadline within which the suspension would be lifted. 

Ms. Bhasin argued that in the modern world, the internet is essential. The state’s print media was at a standstill as a result of the limitations placed on internet services. Due to internet constraints, Ms. Bhasin was unable to publish her newspaper. 

A petition was also filed by Mr. Ghulam Nabi Azad, Member of Parliament who argued that that the communication limitations prevented him from visiting Jammu and Kashmir and from speaking with his constituency’s residents. Restrictions were not justified since the government had not demonstrated the existence of “external aggression” or “internal disturbance”.

Lastly, The petitioners contended that a complete internet ban was unnecessary and that the government should have limited its restrictions to social media websites. Public movement cannot be restricted in general instead, restrictions must be placed on specific individuals who have been arrested for disturbing the peace.

State

The main arguments made by the respondents were that blatant disinformation can be disseminated online, disrupting public order. Internet services were consequently forced to be suspended. The reintroduction of internet services depended on the level of law and order. The internet was blocked in order to prevent violent protests.

The attorney general for the Union of India, Mr. K.K. Venugopal, contended that the history of terrorism in Jammu and Kashmir must be taken into account. He stated that before the decision is issued, “the cognizance of problems in the state” must be taken into consideration due to the high rate of internal militancy and cross-border terrorism in the state of Jammu and Kashmir. 

There was no “general clampdown” as claimed by the petitioners, and the fact that no limits were placed in the Ladakh region indicates that the decision was passed with consideration. Additionally, they distinguished between the internet and newspapers. They said that misinformation spreads easily on the internet because it allows for two-way contact, but newspapers only allow for one-way communication. When placing limits on both, different logic should be used. 

Lastly, they said that it was hard to separate the troublemakers from regular citizens, refuting the petitioners claims that the limits should have been applied to certain people. Based on the current situation, the magistrate issued the instructions under Section 144 of the CrPC. 

RATIONALE

Firstly, The Court held that freedom of speech and expression (Article 19(1)(a)) and freedom to practise any profession or carry on trade, business or occupation (Article 19(1)(g)) includes the right to access the internet, especially for journalism, commerce, and political communication. While the internet is not an independent fundamental right, its use as a medium to exercise constitutional freedoms brings it within the protective scope of Article 19. 

Secondly, Doctrine of Proportionality must be applied and any restriction on fundamental rights must satisfy the proportionality test, which requires:

  1. The goal of the restriction must be legitimate.
  2. The restriction must be necessary.
  3. The authorities must consider if alternative measures to the restriction exist.
  4. The least restrictive measure must be taken.
  5. The restriction must be open to judicial review.

The Court added that the “degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction .”Court also stated that orders must be published and open to Judicial Review.

Thirdly, Indefinite Internet Shutdowns were held to be Constitutionally Impermissible. The Court found that an indefinite suspension of internet services is unconstitutional, as it fails to meet the standard of temporal proportionality. All restrictions must be time-bound, periodically reviewed (every 15 days as per Telecom Suspension Rules, 2017).

The Court clarified that Section 144 is preventive, not punitive, and cannot be invoked to suppress legitimate expression or assembly. It must be applied to specific situations of urgent danger, not used as a blanket tool to curb public movement or protests. 

Lastly, while recognizing the need for national security, the Court adopted a restrained approach and did not invalidate the government’s actions. Instead, it established procedural safeguards and constitutional benchmarks for future executive actions.

DEFECTS OF LAW

Firstly, one of the strongest criticisms of the Supreme Court’s ruling in Anuradha Bhasin v. Union of India is its inability to grant immediate and substantial relief, even while recognizing the constitutional issues raised by the arbitrary internet shutdown and Section 144 CrPC restrictions. In effect, the Supreme Court has refrained from reviewing suspension orders. The Court ignored the suitability of Rule 2(2) in integrating the proportionality principle by concentrating only on the procedural requirements outlined by the Suspension Rules. In a sense, the Supreme Court is violating the fundamental principles of judicial disqualification by giving the Review Committee, which is made up of executive officials, the authority to examine suspension orders.

Secondly, Anuradha Bhasin describes a dangerous break from convention, citing the Court’s insufficient handling of substantive and procedural issues, in part because the respondent failed to present the Court with all of the contested orders. Even though this could have been accomplished on an unproblematic statutory basis rather than a constitutional one, the Supreme Court did not address the respondent’s eight sample orders, the validity of which the petitioners contested because they were issued by an incompetent authority.

Third, the Supreme Court ruled in this case that the principle of proportionality would be the best way to assess whether limitations on fundamental rights are constitutional, but it also established an exception for situations involving national security, sovereignty, and integrity. The shortcomings of the Supreme Court were highlighted in the case of Foundation for Media Professionals v. Union of India.

INFERENCE 

Indian constitutional law has advanced significantly as a result of the Anuradha Bhasin v. Union of India verdict, especially in the area of defending civil liberties and democratic values. The Court’s use of the proportionality criterion is particularly noteworthy since it shows how popular this concept is becoming in human rights law. The Court’s recognition of the right to access the internet as a fundamental right is similarly significant given the growing importance of digital rights in the context of modern communications technology. Among the numerous fundamental rights that can now be successfully exercised online are the freedom of speech and the right to obtain information. The Court’s recognition of the right to access the internet as a fundamental right is an important step towards ensuring that these rights are protected in the digital age. However, In my opinion, the Court in Anuradha Bhasin did apply the proportionality test, but it did so in a very limited way. 

Two key issues were not properly addressed: first, the Court did not closely examine the actual facts or evidence on which the restrictions were based, and second, it did not seriously question whether the State had considered other, less harmful ways to maintain security. Instead of asking whether the internet shutdown was truly necessary or if there were better alternatives, the Court accepted the State’s claim that a full shutdown was the only option. The Court also ignored how badly the restrictions affected ordinary people, punishing everyone instead of targeting specific wrongdoers. 

BIBLIOGRAPHY

VRINDA KHANNA

JINDAL GLOBAL LAW SCHOOL

LLB(HONS.)