Case Comment: Anuradha Bhasin v. Union of India (2020) 3 SCC 637

Date of Judgment: 10 January 2020

Petition Type: Writ Petition (Civil) No. 1031 of 2019

CASE FACTS:

The Indian state of Jammu and Kashmir has had a long-standing history of special status, as mentioned in Article 370 of the Indian Constitution, which granted autonomy, separate Constitution, restrictions for ownership of land by outsiders, etc. The issue came before the court due to the Constitutional Order 272 dated August 5, 2019, which extended the Indian Constitution wholly to Jammu and Kashmir. Several measures were taken on a war-footing afterward, which included the restriction to outsiders, closure of educational institutions and offices, imposition of Section 144 restrictions, and the shutdown of internet services, mobile connectivity, and landlines.

The first petition, W.P. (C) No. 1031 of 2019, put forth by Ms. Anuradha Bhasin, pointed out that the internet was absolutely essential for modern-day journalism and that the print media had come to a halt, owing to the non-availability of the internet from August 6, 2019. The Petitioner has contended against the failure of the government to justify the order as per Suspension rules on vague apprehensions and not on substantive evidence while accentuating the prolonged imposition of those putatively temporary restrictions.

The next petition, W.P. (C) No. 1164 of 2019, was filed by Mr. Ghulam Nabi Azad with the same intent against the government, arguing that in this situation, a national emergency is not required. The absence of any imminent disturbances to law and order suffices the basis for the argument regarding the validity of the imposition of Section 144 of Criminal Procedure Code. 

While Mr. Venugopal and Mr. Mehta offered the state’s argument to the necessity of such measures based on the historical significance of militancy in the region and safety of citizens, the Magistrates, in turn, set forth the position that the restriction has been relaxed and that such restrictions are preventive measures for the safety of citizens, and not merely focusing on social media but international concerns regarding the dark web’s illicit activities.

ISSUES RAISED

Issue 1: Is the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet a part of the fundamental rights under Part III of the Constitution?

Issue 2: Was restriction exercised upon the Petitioner in W.P. (C) No. 1031 of 2019 on account of breach of freedom of the press?

Issue 3: Were the restrictions imposed valid under Section 144, CrPC? Can the Government be exempted from producing all the orders passed under Section 144, CrPC?

Issue 4: Is the Government’s act of prohibition of internet access justified? 

CONTENTION FROM BOTH SIDES:

Petitioner Contention

The petitioner – Ms. Anuradha Bhasin, Executive Editor-Kashmir Times, Srinagar Edition, underlined the importance of the internet for modern-day press and lamented the resultant running aground of her newspaper since the interruption of internet access from August 06, 2019. The issues raised by the petitioner are very many. First and foremost, she asserts that much trade-attending sectors majorly rely on the availability of Internet connectivity, a right which fosters consumerism and diversifies consumer choices both with respect to goods and services. 

The petitioner argued that the freedom to conduct trade and commerce through the Internet equally fall within Article 19 (1) (g) of the Indian Constitution and are subject to restrictions as specified in Article 19 (6). She questioned the validity established under Section 144, as she claimed they were not proportionate to the objective of safeguarding “public order” and no imminent danger justified them. In that regard, she highlighted that they had continued since more than 100 days without any justification attached to their so-called temporariness and called the government’s attention to adopt measures that are less limitative to balance citizens’ rights with public security. She asserted that such broad internet restrictions in Jammu and Kashmir could deny not only Freedom of Speech and Expression but also citizens’ ability to carry on trades, professions or occupations.

Respondent’s Argument

First, the argument established that restrictions imposed with regard to Internet access in the Jammu and Kashmir region were indeed essential to meet the challenge of terrorism activities. Secondly, the argument would maintain that the usual standards that govern free speech and expression cannot apply across-the-board to the worldwide web due to that same international connectivity in reach and safety. Mentioned are the risks associated with having unchecked communication flow across social media and right from the dark world’s threats looming. 

It was thus clarified that the intention of the restrictions was not to deny specific others on particular websites, but rather to make a blanket shutdown across the entire landscape of Jammu and Kashmir. 

Besides, these were clearly counteractive towards the plaintiff’s assertions of the internet restrictions being in place, as such statements were proved to be a gross exaggeration.

RATIONALE: 

The date of using Internet is under the 2020 Supreme Court order passed in the case of Anuradha Bhasin vs. Union of India. It states that there is a right under Articles 19(1)(a) and 19(1)(g). Any restriction would have to pass the tests of proportionality – be necessary, suitable, and least restrictive means available for overstepping the limits. The Court discusses the procedural safeguards as well, i.e., that Government Orders would be published, the periodic review of the shutting down of the Internet by the said rule of 2017, etc. Also, it would consider that Section 144 CrPC should not be invoked against all and sundry dissent by Manner of Deemed Permission but must be based on objective material. The Court will not be rocked on national security, the rights extending patently beyond any such action are subject to judicial scrutiny, as well as constitutional rights.

DEFECTS OF LAW:

The debate continues, Although with a few landmark judgments, on the right to get access to the Internet versus national interests or security. Internet shutdowns due to a plethora of circumstances such as leaks of exam papers, elections, or protests continue to abound, contrary to the principles of necessity, proportionality, and reasonableness that have been underlined in recent surges of Internet shutdowns. That said, there are serious concerns that need to be addressed with utmost immediacy. The absence of any definition gives rise to questions regarding who oversees the balance between imposed restrictions versus those of individual rights infringed, in terms of the proportionality test. Furthermore, there exists an undefined spectrum in the judgment regarding the extent to which security concerns should trigger a behaviour in such peculiar restriction, failing to earmark circumstances that constitute a legitimate threat to national security.

Another blatant flaw is due to unqualified limitation of the scope of the Right to Internet

INFERENCE:

The Anuradha Bhasin ruling enforces that an Internet connection is a prerequisite for exercising many basic human rights like free speech and earning a livelihood, and that limitations may be imposed only when justified, necessary, proportionate, and predictable. The ruling enumerates how administrative actions by the Indian executive on the internet or curfew shutdowns will be subjected to due process before being assessed, thereby setting a benchmark for protecting digital civil rights in India.

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