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Anuradha Bhasin v/s Union of India

The legality of internet shutdown and movement restrictions are challenged under Article 32 of the Constitution. This issue begins right from 05.08.2019, when Constitutional Order 272 was issued by the President, applying all provisions of the Constitution of India to the State of Jammu and Kashmir, and modifying Article 367, the Interpretation of it in its application to the State of Jammu and Kashmir.

The Supreme Court of India ruled that an undefined restriction of internet services would be illegal and that orders for internet shutdown must satisfy the tests of necessity and proportionality.

The Court recapitulates that freedom of speech and expression included right to the internet and therefore was protected under the constitution. However, it could only be restricted when there is a risk against citizens and in the name of national security.

The court ruled that this order which imposes a complete restriction on the internet should be published for the public and was also subject to judicial review.

Background
The issue begins right from 05.08.2019, when Constitutional Order 272 was issued by the President, applying all provisions of the Constitution of India to the State of Jammu and Kashmir, and modifying Article 367, the Interpretation of it in its application to the State of Jammu and Kashmir.

Subsequently, the trip of the outsiders was cut short and arrangements were made for them to go back, educational institutions and offices were also shut down until further orders. District Magistrates, comprehends breach of peace and tranquillity, and hereafter imposed restrictions on movement and public gatherings by applying Section 144 of Cr.P.C. On 04.08.2019, internet services, mobile connectivity and landline were shut down until further orders.

The petition W.P. (C) No. 1031 of 2019, was filed by Ms Anuradha Bhasin. She was the executive editor of the Kashmir Times Srinagar Edition who argued internet to be essential for the modern press. The petitioner pointed out that print media could come to an end without internet since the newspaper had not been published from 06.08.2019.

The petitioner's argument was about the failure of the government to give a valid reason for passing such order as required in Suspension rules. She additionally pointed out the reason for such orders to be passed was wholly based on mere apprehension of risk interns of law and order which was not the case. The contention of the petitioner was to point that the government needs to find a way to balance the measures necessary to maintain national security on one hand and the rights of the citizens. However, the state is establishing it as the ground for passing the order to restrict the rights of the citizens. He claimed that restrictions were to be imposed temporarily, however, are imposed for more than a hundred days.

It is necessary to publish order is a component of natural justice and it even is made accessible to the general public. The state cannot claim any kind of privilege before the court for not producing such judgements. Furthermore, the proportionality test was upheld by the court and must be seen that restrictions imposed on the fundamental rights of citizens are reasonable or not.

The subsequent petition W.P. (C) No. 1164 of 2019 was filed by Member of Parliament, Mr Ghulam Nabi Azad, whose argument was that the state cannot claim any kind of privilege before the court for not producing such orders. Additionally, he stated that the national emergency can only be declared in a handful of cases, whereas in this case, neither internal not external disruption exists. There was no apprehension in the law and order of the state and hence no need of passing Section 144 of CrPC. His contention was not to restrict everybody however to impose specifically against the people of the certain category who neglect the peace

The state should impose the least restrictive measures and must balance the fundamental rights of citizens with the safety of people. And imposing restrictions on the internet, it impacts not only freedom of speech and expression but also the freedom to carry any trade, profession or occupation. However this petition was withdrawn during arguments, the petitioner suggested that the restrictions imposed injure the rights of the law-abiding citizens.

On the other hand, the respondent side Mr K.K. Venugopal the Attorney General submitted that the condition of Jammu and Kashmir having militancy has to be taken into account. He produced the in the court the contention for passing such order was after taking the cognisance of the circumstance in the state. The mere reason was to take preventive measures knowing about the history of internal and external militancy, otherwise it could lead to huge barbarity. He compared the circumstances to that of 2016 when terrorist was killed and similar actions were taken by the officials.

Mr Tushar Mehta, the Solicitor General expressed that the intention was to protect the citizens which are the first and foremost duty of the state. He considered such orders to be necessary to have peace in the state. He claimed that such orders are systematically being relaxed depending upon the present circumstances of the region.

The Magistrates contended that there is almost full relaxation which was earlier imposed based on threat perception. All televisions, radio channels and newspapers are functioning including the one where the petitioner is working. The orders passed under Section 144 of CrPC can be preventive for the safety of the citizens. He justified that it is impractical to segregate the ones who are agitators from the peacemakers. He argued that the internet was never restricted in Jammu and Ladakh. Even though, through social media messages can be sent and received to people to incite ruckus.

The intention of restricting internet in some regions was not only social media but also dark web, which allows sale and purchase of illegal weapons. He concluded that all the orders passed have followed the procedure in Suspension Rules and are being reviewed strictly.

Issues Raised
Issue 1:
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?

Issue 2:
Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?

Issue 3:
Whether the imposition of restrictions under Section 144, CrPC were valid? Whether the Government can claim exemption from producing all the orders passed under Section 144, CrPC?

Issue 4:
Whether the Government's action of prohibiting internet access is valid?

Legal Provisions
Constitution of India: Article 19(1)(a) and Article 19(1)(g)
Code of Criminal Procedure, 1973: Section 144
Information Technology Act, 2000
Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009
The Telegraph Act, 1885
The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

Rational

Issue 1: 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.

The Supreme court held that freedom of speech and expression through the internet is one of the integral parts of Article 19(1)(a). They stressed upon the prior ruling in the case of Indian Express V. Union of India which declared freedom of print medium is an essential right under Article 19(1)(a). Subsequently, in the case of Odyssey Communications Pvt. Ltd. V. Lokvidayan Sanghatana, it was held that the right of citizens to exhibit films is now protected under Article 19(1)(a).

Internet is one of the fundamental means to broadcast information and hence freedom of speech and expression through the internet is a fundamental right under the Article.
Although the government can impose reasonable restriction and only if they are following Article 19(2). Reasonable is limited to the interest such as sovereignty, integrity, security, friendly relations with the foreign States, public order, decency or morality or contempt of Court, defamation or incitement to an offence, although it also includes complete restriction however only in appropriate cases.

The Court held that:
the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected”. This proclamation would entail that any curtailment of internet access have to be reasonable and within the boundaries laid down by Art. 19(2) and 19(6) of the Constitution. The court would not only observe that while ensuring peace and tranquillity, but there also is not an excessive burden on freedom of speech and expression.

Issue 2: Freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was not violated due to the restrictions imposed.

The Court rejected this plea. It is unquestioned that freedom of the press is one of the quintessential features of a democracy, which is very well protected by the Constitution. The petitioner failed to produce any evidence that the orders passed by the state-imposed restrictions on the freedom of press including publication of newspaper and their distribution.

Therefore the court couldn't discover whether such a claim was legitimate or not. Since then the petitioner has resumed publication. Hence the court held it to be not violative and believed the government to be taking care of the freedom of the press.

Issue 3: The imposition of restrictions under Section 144, CrPC were not valid. The Government cannot claim exemption from producing all the orders passed under Section 144, CrPC.

The Court held that the power cannot vanquish legitimate expression of opinion or grievance or exercise of any democratic rights. This section can only be imposed in case of an emergency and not for the prevention of instruction or injury to any lawfully employed. Therefore mere disturbance in the law and order of the state may not necessarily lead to a breach of public order. Only the magistrate and the state has the right to decide whether there is a likelihood of threat to public peace. No person should be deprived of his liberty unless it is dangerous and therefore repetition of the imposition of such orders would be a clear abuse of power.

The court held that the state had to publish the order placing restrictions before the court. It had cited difficulty in determining the legality of the restriction imposed when the state refused to produce the order before the court. The state must provide all relevant information necessary which is needed. As per the interpretation of Article 19, freedom of speech and expression includes right to information. The state has no right to pass such law based on mere apprehension of danger. Hence, this cannot be a valid ground or reason to refuse to produce the order.

Issue 4: Government's action of prohibiting internet access is not valid.
The Court highlighted that it had to consider both procedural and substantive elements to determine the Constitutional legality of the internet shutdown.

The procedural mechanism has two components. First, there is a contractual component between Internet Service Providers and the Government. Second, there is the statutory component as mentioned under the Information Technology Act, 2000, the Code of Criminal Procedure, 1973 and the Telegraph Act.

The Suspension Rules under Section 7 of the Telegraph Act were passed in 2017 and allowed the restriction of internet contingent on certain safeguards. Addition to this Section 5(2) of the Telegraph Act permitted suspension orders only in case of a public emergency or for the safety of the public. Although to pass such an order determination of the existence of emergency is required.

The suspension rules did not explicitly mention the maximum duration of a suspension order. Hence, it is up to the Review Committee to determine the duration and to make sure it does not exceed beyond such period which is necessary.

Judgement
The court held that the government cannot contend any exception for providing any order before the court which is passed under Section 144 of the CrPC. The court declared the internet to be essential in today's life and thereby freedom of speech and expression and freedom to practice any profession, occupation or trade on the internet is a part of fundamental right under Part III of the Constitution.

Furthermore, the court held that the prohibition for access to the internet will only be valid in certain circumstances only otherwise it'll cease to exist. Such impositions affect the Fundamental Rights of the people, therefore the court ordered to follow the test of Proportionality to satisfy that no kind of violation of natural justice exists.

The court did not remove the restrictions on internet and movement of the citizens, however, the judgement deliver widened the interpretation of freedom of speech and expression by including the right to access the internet which was an essential part of the Article which could only be restricted in the situation of national security.

The judgement did not provide immediate relief to the citizens affected due to these orders but laid down principles for future suspension orders and their procedure to prevent the state for abuse of power. This is a solution for further issues.

The Internet has become a tool for spreading a piece of important news or is necessary for a two-way conversation. It has become an integral part of the life of people. In a situation such as today's, the circumstances of coronavirus lockdown, wherein because of internet connection students all over the world can have access to education even after staying at home, people around the world can work and make money for their living.

In a situation such as this internet plays a crucial role, which now has become a right in the interpretation of Right of Freedom and expression under Part III of the Indian Constitution.

  1. Anuradha Bhasin V. Union Of India - 2020 SCC ONline SC 25

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