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Anuradha Bhasin Vs Union of India,2020 - A case comment

Anuradha Bhasin Vs Union of India, (2020) SC 1725 (India)
(Decided on 10th January, 2020)
The following case is remarkable as the Supreme Court striked a balance between the security of the citizens and their fundamental rights guaranteed to them by the constitution. Following a petition from Ms. Anuradha Bhasin, the executive editor of the Kashmir Times Srinagar Edition, the issue of the right to internet of the people being violated was brought to light. She argued that the internet is essential for the functioning of modern press which is guaranteed by [1]Article 19(1)(g) which empowers the citizens of India the right to practise “any profession, or to carry on any occupation, trade or business”.

This case deals with the legality of internet shutdown and movement restrictions put on the state of Jammu and Kashmir following a political turmoil and the issuance of Constitutional Order 272 by the president. This is a significant case supervised by a bench comprising of Justice NV Narayana and Justice V. Ramasubramanium which brought the right to internet under the purview of ‘Right to freedom of speech and expression' which is guaranteed under [2]Article 19(1)(a) of the Indian Constitution. The court makes it mandatory for the Government to formally publish any order of restriction of internet for the public and also acknowledges it to be a subject of judicial review.

Jammu and Kashmir happens to be the Indian Territory, which borders Pakistan, and has been a subject of various decades long altercation, between the two nations. Under the [3]Article 370, of the Indian Constitution, the territory was privileged to enjoy much special status, and even had its own Constitution. Not just that, but the citizens from other states of India were not allowed to purchase property or land in Jammu and Kashmir.

On the brink of a political turbulence, the president of India issued the [4]Constitutional order 272 on 5th August, 2019. In the days continuing this Constitutional order, the government started to impose various restrictions, on the means of online communication, and the freedom of movement. The Civil Secretariat, Home Department, on 2nd of August, 2019, advised the tourists and the Amarnath Yatra pilgrims to leave Jammu and Kashmir. Along with that, the schools and offices were thereby ordered to remain closed until any further information was provided.

Eventually, the trips of tourists were cut short, all outsiders were advised to go back and arrangements were made for the same. All public places, schools, colleges and offices were ordered to shut down. Basic services like landline, internet and mobile connectivity were shut down for an indefinite period of time. Not just that, but the District Magistrate decided to impose various additional restrictions on the freedom of movement and also asked the public assembly citing authority to follow the lead, under Section 144 of the Criminal Penal Code.

The petition W.P. (C) No. 1031 of 2019 was filed by Ms. Anuradha Bhasin who argued that the internet is an essential element for the functioning of the modern press and due to the shutdown, the working of the press has come to a grinding halt as in absence of the internet she hadn't been able to publish her newspaper since 06.08.2019.

However, this plea was rejected because the petitioner failed to produce any such document or proof which shows that freedom of press or publication of newspapers were curtailed due to the restrictions. The petitioner also argued that the government has passed such an order without giving a valid reason as required by the suspension rules. She accused the government of passing such an order on the mere apprehension of a danger to law and order rather than a danger to the public. The public were not at risk when the order was passed.

An intervenor contended that the state is being unreasonable in passing such an order in the name of preventing terrorism resulting in the restriction of the rights of citizens. The rights being ‘right to free speech and expression' and ‘right to to carry on any trade or profession'. To restrict any fundamental rights on the grounds of apprehension of danger, the state must ensure that it's decision survives the test of proportionality and check that the least restrictive step has been taken. He also pointed out the fact that the restrictions were meant to be temporary in nature but had lasted over 100 days.

A subsequent petitioner argued that it is obligatory for the state to publish the order and make it accessible to the general public to abide by the principles of natural justice. The state also cannot claim any immunity from producing the document of the said order before the court.

Another petition, W.P. (Crl.) No. 225 of 2019, was rejected by the court on grounds of having no merit but the court noted the fact that these restrictions caused harm to the general law-abiding citizens.

From the respondents' side who defended the state's actions were The Attorney General of India - Mr. KK Venugopal and Solicitor General of the state of Jammu and Kashmir - Mr. Tushar Mehta.

Mr. K. K. Venugopal, learned Attorney General for Union of India, submitted that the background of terrorism has been taken into account, in Jammu and Kashmir. He even submitted that before passing the order, “the cognizance of problem in the state” needs to be taken into consideration. According to him, it would be foolish to not take any preventive measures knowing the cross-border terrorism, and the internal militancy. Knowing the background of the government doesn't take any measure, there can still be a huge violence. Similar measures were taken back in 2016 also, when a terrorist was killed.

Mr. Tushar Mehta, Solicitor General for the State of Jammu and Kashmir, capitulated that the prime concern of the State must be to protect the citizens. Knowing the history of Jammu and Kashmir, such measures are bound to be taken. The state is not only suffering from physical, but also digital cross-border terrorism. Countering the arguments of the petitioners, along with the intervenors, it was said that they do not happen to know the exact situation of Jammu and Kashmir, and that the individual movements were never restricted.

Again, the restrictions that were imposed were gradually being relaxed seeing the circumstances of the given area. Mr. Tushar Mehta also rejected the argument that free speech standards as they related to newspapers applied to the internet on the grounds that their differences were too great. His explanation was that while newspapers only allowed a single way communication, the internet made it possible to communicate in both directions, making dissemination of messages very simple. He even concluded that it was not possible to ban only certain websites or parts of the Internet while allowing access to other parts, as the government learned in 2017.

The main issues identified by the court are given here as follows:
The first issue being, the freedom of speech and expression through the internet is a fundamental right. In regard to this issue, the apex court recalled it's past judgment on [5] Indian Express Vs Union of India which declared freedom of print media to be a fundamental right under Article 19(1)(a). The SC recognized the internet to be a fundamental medium of broadcasting information and expression. Hence, the right to freedom of speech and expression using the internet and the right to carry out any trade or profession using the same is constitutionally protected. However, these rights can be curtailed by the state under the existence of reasonable grounds using [6]Article 19(2) and [7]Article 19(6) of the Indian Constitution.

The second question before the court was whether the restrictions under section 144, CrPc valid or not and whether the government can claim privilege of exemption from producing the order before the court. Section 144, CrPc provides the government a mechanism to deal with imminent threats to the public life by taking preventive measures. The implementation of this section requires an assessment by a magistrate to affirm that there are sufficient grounds for the section to be imposed. Also, the concerned subjects on whom the implementation would be done have to be identified and the length of such restriction have to be determined and stated.

The apex court also noted that [8]Section 144 cannot be imposed on mere likelihood of a danger but to prevent an event that could lead to a danger. Indefinite restrictions were also unconstitutional. Hence, the imposition or Section 144 was invalid. Now, referring to the precedent of [9]Ram Jethmalani Vs Union of India, 2011' the Supreme Court opined that the state is obligated to disclose the document of the order of the restrictions. The right to information is an important part of right to freedom of speech and expression guaranteed under Article 19. Therefore, the court ordered the state to produce the said document before it.

The next important issue was whether the ban on internet services was constitutionally valid or not. The court laid out the test of proportionality and reasonableness of restrictions. It dismissed the justification of the respondents stating the inability to ban certain parts of the internet in particular. Accepting such a justification would lead to the state getting a free hand to completely curtail the right to internet every time when such a situation comes up. The apex court also determined that the procedure to determine the legality of such ban has two components. Namely, the contractual part between the government and the Internet Service Providers, along with the substantive elements part.

The Telegraph Act, 2017 contained the suspension rules which allowed the restrictions of internet contingent to certain safeguards. [10]Section 5(2) of the Telegraph Act provided that, the suspension orders can only be applied in cases of public emergency or safety of the people. As the suspension rules didn't provide anything explicitly on the duration of the suspension, the court left it up to the review committee to decide the duration and make sure that the duration is within the reasonable period which is necessary.

Based on the rationales used by the court in its judgment, it would be fair to conclude that the court affirmed that the right to freedom of practicing any trade or profession and the right to expression through the medium of the internet is constitutionally protected. Although the government can curtail the same right for a limited period of time, there must be proved necessity for the same, which the government had failed to prove in this given case.

The court in its judgement held that the government's action of prohibiting the internet is constitutionally invalid, yet it didn't remove the internet restrictions. Even though the Supreme Court affirmed that the restrictions under Section 144 were invalid, it didn't outright nullify the order of curfew but left it on the review committee to decide it's time limit and proportionality of actions. The judgement by the Supreme Court can't be said to have been in favour of the petitioners but the judgement was right as it widened the interpretation of freedom of speech and expression by incorporating the right to access the internet which can only be curtailed in situations concerning national security.

End-Notes:
  1. Article 19(1)(g), Indian Constitution - https://indiankanoon.org/doc/935769/.
  2. Article 19(1)(a), Indian Constitution - https://indiankanoon.org/doc/935769/.
  3. Article 370, Indian Constitution - https://indiankanoon.org/doc/666119/ .
  4. Constitutional Order 272 of 2019 - http://egazette.nic.in/WriteReadData/2019/210049.pdf
  5. Indian Express Vs Union of India, 1984 - https://indiankanoon.org/doc/223504/.
  6. Article 19(2), Indian Constitution - https://indiankanoon.org/doc/493243/
  7. Article 19(6), Indian Constitution - https://indiankanoon.org/doc/626103/
  8. Section 144, CrPc - https://indiankanoon.org/doc/930621/
  9. Ram Jethmalani Vs Union of India, 2011 - https://indiankanoon.org/doc/1232445/
  10. Section 5(2), Telegraph Act, 1885 - https://indiankanoon.org/doc/1445510/
Written By: Prapti Hota (1st Year, KIIT Law School), Biswayan Bhattacharjee (1st year, KIIT Law School)

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