Citation:(2020) 3 SCC 637
Court:Supreme CourtofIndia
Bench: N.V. Ramana, R. Subhash Reddy, and B.R. Gavai, JJ.
Date of Judgment: January 10, 2020
1. FACTS
The Indian government revoked the special status of Jammu and Kashmir under Article 370 of the Constitution in August 2019. In anticipation of unrest and to quell protests, the government imposed a complete lockdown in the region, including restrictions on public movement, closure of schools and colleges, disconnection of internet services, and other communication blackouts. The restrictions went on for months, significantly affecting the daily lives of people in the region.
Anuradha Bhasin, Kashmir Times Executive Editor, and several others moved petitions in the Supreme Court against the indefinite closure of the internet and other means of communication. Petitioners asserted that the closure was arbitrary, unconstitutional, and violated the citizens’ fundamental rights — specifically, freedom of speech and expression, freedom of the press, and the right to continue trade or business under Articles 19(1)(a) and 19(1)(g) of the Constitution.
This was the case when the internet had become an indispensable component of almost every aspect of modern life — education and medicine, business and journalism, and the blackout in Jammu and Kashmir raised national and international alarm about democratic freedoms and digital rights.
2. ISSUES RAISED
The Supreme Court considered several pivotal constitutional questions:
1. Whether freedom of speech and expression and freedom to practice any profession or to pursue any trade or business on the internet falls under the fundamental rights under Article 19(1)(a) and 19(1)(g) of the Constitution?
2. Was the government’s decision to suspend internet services indefinitely and enforce curfews without valid orders Constitutional or otherwise?
3. Were the steps selected in accordance with norms of proportion and legality?
4. Whether the procedural safeguards under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 were followed?
3. CONTENTIONS
Petitioners’ Arguments
- Infringement of Constitutional Fundamental Rights: The petitioners contended that the wholesale shutdown of the internet had a chilling effect on free speech, journalism, and the right to livelihood, all protected under Article 19 of the Constitution.
- No Justification or Transparency: It was contended that no written orders had been given by the government specifying the justification for the shutdown, denying the citizens their constitutional right to protest against such orders.
- Lack of Proportionality: The petitioners had argued that the restrictions were disproportionate to any security threat and were not the least restrictive means necessary for preserving public order.
- Length of the Shutdown: An absolute and irrevocable shutdown with no mechanisms for review and no time limits was contended to be unconstitutional and undemocratic.
Arguments of Respondent (Union of India):
- Security Concerns: The central government asserted that the lockdown was necessary to maintain public order in the aftermath of the volatile scenario in the valley following the revocation of Article 370. The valley saw insurgency, and the blackout was necessary to prevent loss of life and triggering of violence.
- Authority of the State in Emergency: The government contended that under Section 144 of the CrPC and the 2017 Telecom Suspension Rules, they had sufficient authority to impose these restrictions in the national interest.
- Temporary Measures: The restrictions, the government said, were temporary and not permanent. They indicated that services were being gradually restored in phases.
4. RATIONAL
The Supreme Court delivered a judgment that, while indirectly overturning the internet shutdown orders, provided robust jurisprudence on basic rights in the age of the internet.
A. Internet and Fundamental Rights
The Court unequivocally held that the freedom of speech and expression and the freedom of pursuing any profession or carrying on any trade or business by means of the internet is safeguarded under Article 19(1)(a) and Article 19(1)(g), respectively. It was a milestone recognition of cyber rights as a component of fundamental rights in the 21st century.
“Expression via the internet has acquired modern-day significance and is one of the principal methods of information dissemination. Hence, freedom of speech and expression via the internet is included in Article 19(1)(a) of the Constitution.” — Supreme Court
B. Doctrine of Proportionality
The Court reaffirmed that any restriction of fundamental rights must be proportionate — i.e., there must be a legitimate aim, the measure must be necessary, and it must be the least intrusive. It reaffirmed that restrictions not of limited duration cannot meet the test of proportionality and are unconstitutional.
C. Legality and Publication of Orders
The ruling requested the administration to release all orders regarding closing down the internet or implementing curfews so that the citizens have the right to contest them. Untransparent executive orders on civil liberties cannot be allowed in a constitutional democracy.
D. Review Mechanism
The Court emphasized the absence of a reviewing process under the 2017 Suspension Rules and ordered a review every seven working days to have ongoing justification for such orders.
But the Court didn’t give a categorical order for the restoration of internet services and instead left the decision to the discretion of the government. The Court also declined to rule out the orders as unconstitutional since all the specific government orders weren’t printed before the Court.
5. DEFECTS OF LAW
While the ruling provided a welcome confirmation of openness and digital rights, certain important gaps were evident:
i. Judicial Deference
The Court did not make categorical directions to put an end to the restrictions, but rather unduly deferred to the discretion of the executive. This judicial restraint arguably negated the potential impact of the judgment on the actual freedoms of people in Kashmir.
ii. No Retrospective Relief
While acknowledging the unequal character of the indefinite internet shutdowns, the Court offered no ex-post remedy or compensation to victims who were injured during the months-long shutdown.
iii. No Clearly Defined Time Limits
Although the Court ruled that the restrictions may not be open-ended, it did not settle the upper limit of permissible duration of shutdowns. This leaves open the prospect of long-term suspension under imprecisely stated rationales.
iv. Deficient Accountability Mechanisms
While regular reviews were suggested, the task of reviewing was left to the same executive powers that instituted the restrictions, thereby raising doubts about impartiality.
6. INFERENCE
The Anuradha Bhasin judgment is a landmark judgment in the development of constitutional law in India, particularly with regard to digital rights. For the very first time, the Indian judiciary categorically recognized that access to the internet is part of the exercise of fundamental rights under Article 19. This is the basis for a more rights-based approach to digital governance in India.
However, although the Court spoke well in principle, it was limited in remedy. This judicial idealism/executive realism compromise or balance testified to the Court’s willingness to advance constitutionalism without seeming to intrude into sensitive national security matters.
The human toll of the Kashmir internet shutdown — for students, entrepreneurs, journalists, and citizens — was left unaddressed in the form of relief in the short term. The silence over past harm is typical of a larger problem in Indian law, where the recognition of a violation of rights is not always accompanied by restitution or accountability.
All the same, the judgment’s legacy is the judicial definition of norms: transparency, proportionality, accountability, and recognition of digital fundamental rights. It has already been referred to in later judgments and deliberations about internet bans, for example, during the farmers’ agitation and in Manipur and Rajasthan.
More broadly, Anuradha Bhasin v. Union of India opens the door to a new rights-based digital paradigm in India. The ruling encourages citizens to demand transparency and legal justification for state action affecting civil liberties, particularly in the digital sphere. Conclusion This case comment presents a humanised and legal exposition of a classic constitutional case in which the Supreme Court was poised between national security and civil liberty. Though perhaps it did not bring immediate relief to the petitioners or to the people of Kashmir, it unequivocally elevated the legal conversation on digital rights and reinforced afresh the precept that every executive act — even during perceived times of crisis — will need to clear the hurdles of legality, necessity, and proportionality. As India wrestles with the challenges of free speech, privacy, and the internet in the contemporary era, the Anuradha Bhasin judgment will be the benchmark, both for what it brings and what it fails to bring.
Author’s Info.
Shriya singh
BALLB/100/23
Dharmashastra National Law University, Jabalpur
Email: shriya100-23@gmail.com
Contact No. 9140718953