Authored By:
Samridhi Seth - Public Member
Ruchi Agrawal - Associate Editor
Name of the case : Anuradha Bhasin & Ors. v. Union of India
Bench : N.V. Ramana, R. Subhash Reddy, and B.R. Gava
Court: Supreme Court of India
Citation: [AIR (2020) SC 1308]
Introduction
A prominent journalist Ms. Anuradha Bhasin, the executive editor of the "Kashmir Times Srinagar Edition" filed a petition. Aggrieved by the internet shut down for an indefinite time imposed by the state after passing the rule of abrogation of Article 370 in the state of Jammu & Kashmir, the petitioner argued the internet is vital for the operating of modern press and accessibility of the internet generates profession for many people including the press and the same is guaranteed by Article 19(1)(g) which permits the citizens of India the right to practice "any profession or to carry on any occupation, trade or business". This case deals with the validity of the internet shutdown and limitations on movement laid in the state of Jammu and Kashmir, which were after the political disorder and imposing Constitutional Order 272 by the President.
Case History:
Urged by the political unrest prevailing as an aftermath of abrogation of Article 370 in the state of J&K, the President of India issued Constitutional order 272 on 5th August 2019. This entailed several limitations being imposed by the government in J&K, for instance: on the means of online communication, and the freedom of movement. The chaos in the state began on August 2nd, 2019 after the tourists and the Amarnath Yatra Pilgrims were directed by the Civil Secretariat of the Home Department to leave the state as soon as possible. Soon after this, schools, offices, and other institutions have circulated an order to remain close until any further instructions were passed by the government. Followed by this, basic services like landline connection, internet, and mobile connectivity were closed down for an unspecified period.[1] Moreover, additional restrictions were imposed by the District Magistrate, curbing the right to movement by imposing Section 144 of the Cr.P.C.
The petitioner contested that because of the shutdown being imposed on essential services like the internet, the operations of the press have come to a grinding halt and that she was unable to issue her newspaper since 06.08.2019. There were several other petitions filed, that argued issuance of a suitable writ to quash the orders and directions passed by the state to cut down the communication services. It further requested the court to pass an order to immediately restore all the communication services including landline and internet services in the state of Jammu & Kashmir.
Contentions:
1. Whether the state can be exempted from imposing any orders under Section 144 Cr.pc as well as under the suspension rules?
2. Whether the Freedom of Speech and Expression and Freedom to practice any profession, or to carry any Occupation, Trade, or Business over the Internet is a part of the Fundamental Rights under Part III of the Constitution?
3. Whether the state's action of forbidding internet access is valid?
4. Whether the restriction imposed under Section 144 was valid?
5. Whether the Freedom of Press of the Petitioner in this Writ Petition was violated due to the restriction?
Explanation:
In line with the issues raised the Court opined that Section 144, Cr.PC. offers the state an apparatus to deal with imminent intimidations to the public by taking protective measures. The execution of this section requires an appraisal by a judge to assert that there is adequate reason to enforce the section. Likewise, the concerned subjects on whom the execution would be applied should be acknowledged and length of such limitation must be expressed. The apex court thought that Section 144 cannot be forced on the simple probability of peril but only to forestall an occasion that could prompt a threat. Uncertain limitations were additionally unlawful. Subsequently, the burden of Section 144 was invalid. Further, it referred to the precedent of Ram Jethmalani v. Union of India, 2011[2], where the Supreme Court held that "the state is obligated to disclose the document of the order of the restrictions. The right to information is an important part of the right to freedom of speech and expression guaranteed under Article 19." Thus, the court requested the state to deliver the said document before it.
Considering the second issue at hand, the court held that freedom of expression through the internet is one of the "integral parts" of Article 19(1)(a). The Court highlighted its previous decisions where it has safeguarded the new medium of expression.
The Court relied on the judgment given in K.S. Puttaswamy case[3] where it was held that on account of proportionality of action should be resolved while taking a gander at the limitations being forced by the State on the Fundamental Rights of the people. It should not only consider physical and legal restrictions but also take into consideration the fear that such limitations cause in the minds of the public.
The Court added that " restriction, both territorially and temporally, must stand with what is necessary to combat an emergent situation." Furthermore, the Court went against the state's contention that web destinations cannot be prohibited because of the absence of technology. As, on the off chance that is acknowledged, the state presumes that it can complete blockage which is an unacceptable argument, without fail and which cannot be acknowledged. The Court would not just see it while guaranteeing harmony, but it should also see that there is no unnecessary weight on freedom of speech and expression.
While dealing with issue three, The Supreme Court said that the public authority cannot legitimize the shutting under Section 69A of the Information Technology Act, 2000 read with Information Technology Rules, 2009 for impeding access of data as it obstructs entire of the web access. The Court again reiterated the point that "complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if 'necessary' and 'unavoidable'. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy."[4]
While dealing with the fourth issue, the Court came to hold that Section 144 of Cr.PC. is exercisable if there is persistent danger and the apprehension of danger. Although, it cannot apply to stifle valid opinion or objection, or practice of any democratic rights. The principle of proportionality has been effectively applied to the limitations made to have balanced and reasonable rights, and a directive put out under Section 144 should convey considerable facts to allow for judicial review of the regulation passed.[5] It further said that recurring orders given under the same law would be an exploitation of power.
Finally, managing the last issue, the Court said that the petitioner could not offer any solid proof that shows the limitations forced confined the freedom of press like publication and distribution of the papers. Since the petitioners were unsuccessful to produce any proof hence the Court was unable to determine whether the claim for chilling effect was valid or merely a futile argument for self-fulfillment.
Findings:
After having discussed all the issues broadly, the court came up with the following directions:
1. The Court recognized the internet as a medium to practice freedom of speech and expression and to facilitate freedom of practice any profession or carry on any trade, business, or occupation and it is now protected under the constitution.
2. The Court issued an order to revive the internet services after a thorough review and highlighted that suspension of internet of connectivity services for an indefinite period of time is violative of laws under Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. The suspension of services should only be on a temporary basis.[6]
3. Issuance of any orders relating to the shutting of internet service must be in compliance with the principle of proportionality in order to prevent the abuse of power and any order moved under the Temporary Suspension of Telecom Services Rules are subject to judicial review.
4. Court ordered a Review Committee to be set up to review and rectify the suspension orders.
5. If any order that has been passed does not conform with the laws laid, it shall be revoked, and new orders may be passed that complies with the laws.
6. The state authorities were instructed to restore the essential internet services such as government websites, limited E-banking facilities, hospital services.
7. The power under Section 144 Cr.P.C.. should be implemented in cases of imminent danger and threat and should not be exercised to suppress the liberty or opinions of the citizens.
8. Any order issued under Section 144 Cr.P.C. must comply with proportionality test and reasonability and Magistrate is compelled to monitor the balance between the restrictions imposed and rights of the citizens.
The Court in its judgment manages to give certain relaxations to the petitioners but they were not absolute in nature. The court criticizes and curbs the exclusive powers given to the state in the name of reasonable restrictions and national security which the state happens to apply arbitrarily ceasing the fundamental rights of the public. On the other hand, the Court in its judgment held that the government's action of prohibiting the internet is constitutionally invalid, yet it did not remove the internet restrictions. Even though the Supreme Court affirmed that the restrictions under Section 144 were invalid, it did not outrightly nullify the order of curfew but left it on the review committee to decide it is time limit and proportionality of actions. Thus, the decision may not give immediate relief to the petitioner by giving direct orders but had laid a procedure to be followed. Further, the court in its judgment has expanded the horizons of freedom of speech and expression by recapitulating "that internet access was integral to freedom of expression and could not be restricted indefinitely even in the name of national security." In other words, Freedom of expression and the freedom to practice any profession online are now being protected by part III of the Indian Constitution.
[1] Karman Kaur, ANURADHA BHASIN v. UNION OF INDIA (Case Law) ANURADHA BHASIN v. UNION OF INDIA (Case Law) (lexsyndicate.com)
[2] Ram Jethmalani Vs Union of India (2011) 8 SCC 1
[3] K.S Puttaswamy v. Unoin of India (2017) 10 SCC 1.
[4] . ANURADHA BHASIN V. UNION OF INDIA: FREE CASE BRIEF - Prolawctor, last visited – 27/5/2021
[5] Ayush Verma, Anuradha Bhasin v. Union of India- Case Analysis, (Anuradha Bhasin v. Union of India- Case Analysis - iPleaders), last visited – 27/5/2021
[6] Anuradha Bhasin & ors. v. Union of India AIR 2020 SC 1308 www.scconline.com
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