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An Analysis of Anuradha Bhasin v//s UOI

Facts
Jammu & Kashmir is an Indian territory that shares its borders with Pakistan and has been exposed to the disputes arising between the two countries since forever. On 02.08.2019, a Security Advisory was issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advising the tourists and the Amarnath Yatris to cut down their stay and make arrangements for their return. All the educational institutions and offices were ordered to remain shut until further notice.

All the mobile phone networks, internet services, and landline connectivity were stopped in the valley on 04.08.2019. Further, restrictions on movement were also imposed in some areas. The District Magistrate imposed restrictions on movement and public gatherings on account of powers vested under Section 144 of Cr.P.C., on the same date. Owing to these restrictions, the movement of journalists was prohibited. Further, the modern press couldn't undertake any publishing without the internet.

Anuradha Bhasin vs Union Of India & Ors.
Bench: N.V. Ramana, V. Ramasubramanian

The petition W.P. (C) No. 1031 of 2019 was filed by Ms. Anuradha Bhasin, the executive editor at Kashmir Times, Srinagar Edition. She contended that it was next to impossible to carry out modern press functions without the internet. Further, she added that she was unable to publish her newspaper since 06.08.2019. She also argued about the failure of the government to give a valid reason for passing the above-mentioned order. Her plea was for the government to find a balance between the liberty of citizens and the security of the nation. Further, the said restrictions were supposed to be temporary but were imposed for hundred days.

The petition W.P. (C) No. 1164 of 2019 was filed by Mr. Ghulam Nabi Azad, a member of parliament belonging to the largest opposition party. He contended that it is essential for the restrictions to be based on valid reasons and not mere speculations. Further, it was mandatory for the state to not hide any official orders.

According to him, there are no valid grounds such as external aggression or internal disturbances as stated under Article 356 of the constitution to declare a national emergency in this case. He further contended that restriction on movement cannot be imposed on the public at large and can only be specifically imposed on the individuals who are disrupting the peace of the state; and that The state should maintain a balance between the fundamental rights and safety of the citizens.

Regarding the suspension of internet services, he contended that such restrictions were a threat to freedom of speech and expression and also to the execution of trade and profession. This petition was later withdrawn during further arguments.

The Attorney General, Mr. K. K. Venugopal, siding with the respondents, emphasized the case of National Investigation Agency v. Zahoor Ahmad Shah Watali and argued that the condition of Jammu and Kashmir was a militancy should be taken into account. According to him, these restrictions were brought forward to prevent acts of terrorism. Further, Mr. Tushar Mehta, Solicitor General for the State of Jammu and Kashmir was of the view that it is the primary duty of the state to ensure the safety and security of citizens.

He assured the relaxation of the orders depending on the circumstances. He also presented statistics indicating that the people were leading their ordinary lives in the State. He further added that all newspapers, television, and radio channels are functioning normally. He stated that the intention of restricting the internet was not only to curtail the use of social media but also of the dark web that is used for the purchase and sale of illegal weapons. According to him, all the orders passed under the Suspension Rules were passed in compliance with the procedure in the Suspension Rules and were being reviewed strictly in accordance with the same.

Issues
The Supreme Court, in this case, identified five major issues:
  1. Whether the Government can claim exemption from producing all the orders passed under Section 144, Cr.P.C., and other orders under the Suspension Rules?
  2. Whether the freedom of speech and expression and freedom to practice 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?
  3. Whether the Government's action of prohibiting internet access is valid?
  4. Whether the imposition of restrictions under Section 144, Cr.P.C., was valid?
  5. Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?

Analysis:
  1. Whether the Government can claim exemption from the orders passed under Section 144, Cr.P.C., and other orders under the Suspension Rules?
    Citing Ram Jethmalani v. Union of India, the court held that for clause (1) of Article 32 to be meaningful, the state needs to disclose the relevant information. Further, Article 19 of the Constitution has been interpreted to mandate the right to information as an important facet of the right to freedom of speech and expression. However, the court opined that this is not a valid ground to refuse the production of orders.
     
  2. Whether the freedom of speech and expression and freedom to practice 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?

    In Indian Express v. Union of India, the Court had declared that the freedom of print medium is covered under the freedom of speech and expression. Further, in Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, it was held that the right of citizens to exhibit films on Doordarshan is a part of the fundamental right of freedom of expression guaranteed under Article 19(1)(a). This freedom can be curtailed only under circumstances set out under Article 19(2).

    In the case at hand, the Supreme Court, while citing the above-mentioned judgements, held that the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be as per Article 19(2) of the Constitution.
     
  3. Whether the Government's action of prohibiting internet access is valid?
    The court was of the view that it has to take into consideration not only the substantive law concerning the right to internet but also the procedural aspect to determine the constitutional validity of internet shutdown.

    The procedural mechanism was twofold:
    1. Contractual mechanism: which dealt with the contract signed between Internet Service Providers and the Government.
    2. Statutory mechanism: which came under the ambit of Information Technology Act, 2000, the Criminal Procedure Code, 1973, and the Telegraph Act,1885. In the present case, emphasis was placed on the second mechanism. The government is conferred with the power to restrict telecom services including access to the internet, according to the suspension rules passed under Section 7 of the Telegraph Act. These rules however include certain safeguards as they impact fundamental rights to a huge extent. In addition to this, Section 5(2) of the Telegraph Act, permits suspension orders only in case of public emergency. The maximum duration of the suspension order is not mentioned in these rules hence, it is the duty of the review committee to give these orders for a suitable period that does not extend unnecessarily. Here, all the orders were not placed before the Court and there was no clarity as to which orders were in operation and which had already been withdrawn, hence, the relief was accordingly moulded in the operative portion.

     
  4. Whether the imposition of restrictions under Section 144, Cr.P.C., was valid?
    The court observed that the power conferred under Section 144, Cr.P.C., is both remedial and preventive. It is exercisable not only at the time of actual danger but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an emergency. The power under this cannot be used to suppress the legitimate expression of opinion, grievance, or exercise of any democratic rights.
     
  5. Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?
    The court rejected the argument that the freedom of press was curtailed due to restrictions imposed in movement and communication in Jammu and Kashmir. There is no doubt that the freedom of the press is a valuable right enshrined under Article 19(1)(a) of the Constitution. However, the petitioner failed to produce any evidence that the freedom of the press was curtailed by the imposition of restrictions.

Judgment
Supreme Court held that the internet is a Fundamental Right u/a 21 i.e., Protection of life and personal liberty, u/a 19(1)(a) i.e., Right to freedom of speech and expression and u/a 19(1)(g) i.e., Right to practice any profession, or to carry on any occupation, trade or business.

Indefinite suspension or shut down of internet services is a violation of Fundamental Rights.

The court did not lift the internet restrictions but ordered the government to review the same and held that the government was empowered to undertake internet shutdown only after making such orders public. The same was subjected to judicial review.

Conclusion
The government has to suspend the internet services on valid grounds and for a limited period of time and it is essential to inform the general public before taking any such step. In the abovementioned case, it failed to do the same. The court ordered the state to review the restrictions it has imposed.

Reference:
  1. Anuradha Bhasin vs Union Of India https://main.sci.gov.in/supremecourt/2019/28817/28817_2019_2_1501_19350_Judgement_10-Jan-2020.pdf
  2. National Investigation Agency v. Zahoor Ahmad Shah Watali
    https://main.sci.gov.in/supremecourt/2018/34633/34633_2018_Judgement_02-Apr-2019.pdf
  3. Ram Jethmalani v. Union of India
    https://main.sci.gov.in/jonew/judis/38685.pdf
  4. Indian Express v. Union of India
    https://indiankanoon.org/doc/223504/
  5. Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana
    https://indiankanoon.org/doc/1241147/

    Award Winning Article Is Written By: Ms.Sapna Sharma
    Awarded certificate of Excellence
    Authentication No: SP36173644204-30-0921

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