This case comment analyses Anuradha Bhasin vs. Union of India
, a case
that establishes a derivative and not a distinct, freestanding fundamental right
to internet access.
The main issues before the court:
It was decided that:
- Whether freedom of speech and expression, as well as the freedom to
practice any profession, trade, or business over the Internet, are part of
the fundamental rights.
- Whether the government's action of restricting access to the internet
- Whether is it possible for the government to claim an exemption from
having to produce all the orders issued under Section 144 of the Criminal
Procedure Code and any orders issued under the Suspension Rules?
- Whether freedom of the press was violated as a result of restrictions
Freedom of speech and expression via the internet is an essential part of
Article 19 (1)(a) of the Constitution, and any limitation imposed must be in
consonance with Article 19 (2) of the Constitution.
- The doctrine of proportionality must be followed - the extent of
restriction and scope must relate to what is truly necessary.
- Direct Review Committee constituted-non permanence of Restrictions
- Should not be permitted to last longer than necessary- a power granted
under Section 144 of the Code cannot be used to obstruct the lawful exercise
of democratic rights.
While passing orders it is important to disclose material facts making it
necessary to pass such orders.
It cannot be argued that the internet is the most widely utilized and accessed
channel for information sharing in today's world. The importance of the internet
cannot be understated, as we are constantly connected to it from dawn to dusk,
and it facilitates our most fundamental actions.
Vinton G. Cerf, one of the Internet's pioneers remarked that "though the
Internet is very important, however, it cannot be elevated to the status of
Human Right." With great respect to his opinion, the Hon'ble Supreme Court in
the case of Anuradha Bhasin said that "the prevalence and extent of internet
proliferation cannot be undermined in one's life."
In the present case, the Communication restrictions imposed in the state of
Jammu & Kashmir was put for review before the Apex Court and the Court
identified a derivative fundamental right to access of internet and also
endorsed the principle of proportionality.
Description and Background Information
The lawsuit was filed following the President's abrogation of Article 370 and
the issuance of Constitutional Order 272, which made all provisions of the
Indian Constitution applicable to the state of Jammu and Kashmir. In view of the
current situation in the state, limitations on movement and meetings were
imposed under Section 144 of the Criminal Procedure Code, and internet and
telephone services were also suspended in the state. This disrupted the working
of journalists, therefore petitioner, editor of Kashmir Times, Ms. Anuradha
Bhasin, filed a writ petition under Article 32 of the Constitution, challenging
the restrictions and arguing that such restrictions in today's world are a
violation of Article 19, which guarantees freedom of speech and expression as
well as the freedom to carry on any trade or occupation.
The right to use the Internet is recognized in human rights law internationally.
In 2011, the United Nations Special Rapporteur based on Freedom of Expression in
their report had recommended that all members should formulate solid and
efficient programs to "make the Internet widely available, accessible and
affordable to all segments of the population".
In the present time, access to the internet has become a prerequisite for
students. In Faheema Shirin R.K. vs. State of Kerala and others Hon'ble High
Court stated that the Right to access the internet is a part of the Right to
education under Article 21A and the Right to Privacy under Article 21 of the
Constitution of India. Internet access not only provides opportunities for
students to acquire knowledge but also improves the quality of education.
Freedom means the right to freely communicate one's ideas orally, by writing, by
printing, by drawing, or by any other means, to as many people as possible.
In Secretary, Ministry of Information & Broadcasting Government of India v.
Cricket Association of Bengal
 and in the case of Shreya Singhal v.
Union of India
, The Supreme Court observed that "the wider range of
circulation of information or its greater impact cannot restrict the content of
the right nor can it justify its denial".
In a concatenation of judgments, the Supreme Court recognized free speech as one
of the fundamental rights, and with time due to the evolution of technology, the
court has also recognized the freedom of speech and expression on various media.
Expression has become so important on the Internet and it is one of the major
means of dissemination of information.
This part embarks on dealing with the legal analysis of the judgment delivered
on 10th January 2020. In the present case, the three judge bench of the
Supreme Court had to consider the issue of internet shutdowns, and the bench had
to also decide the appropriate review criteria in such cases.
Petitioners pleaded before the Court to adopt the proportionality standard that
was previously relied on in the case of K.S. Puttaswamy v. Union of India
however, protection was taken by the government under the ambit of national
security and safety. Simultaneously government also issued a caution to the
court against interfering in these matters. Further, the Government at the very
first instant invoked national security and refused any kind of disclosure of
orders based on which the movement restrictions and communication shutdown were
The government with great hesitation produced a few standard orders but cited
administrative difficulties as the reason for not being able to produce all of
the orders. The court in its judgment formally adopted the proportional standard
as an appropriate criterion for reviewing restrictions on Internet access but it
also warned against "excessive utility of the proportionality doctrine in the
matters of national security, sovereignty, and integrity."
The Court not only deflected questions concerning matters of national security
being treated as an exception but also failed to provide any other standard
method of review that would be appropriate for matters concerning national
security. This stance in the ruling appears to be a shortcoming since it limits
the judge's capacity to prevent arbitrary administrative action in future cases
involving internet and communication shutdowns, as well as other cases involving
comparable claims of national security and safety.
The very notion put forth by the court of this exception is conflicting with the
basic structure of the Constitution of India, which allows for the suspension of
judicial review in the case of the enforcement of certain fundamental rights
through a formal declaration of emergency. This exception not only shields
the government from parliamentary scrutiny and reputational costs but also
allows the government to impose blanket restrictions which are only possible in
case of a state of emergency.
The decision taken by the court's judgment is best understood in the light of
its long-standing unwillingness in intervening in national security. The
Supreme Court for a long time has been functioning in a limited role in matters
which are related to national security especially while ensuring of procedural
Further, executive action can only be challenged by individuals on limited
grounds such as excessive delegation, mala fide actions, and non-application of
mind. The petitioners opposed to the orders issued by the I.G. of Police under
the Telecom Suspension Rules 2017 because the officer lacked the necessary power
to issue orders for the suspension of telecommunication services under the
proviso to Rule 2(1). However, the Apex Court did not justify any of the
procedural questions put forth and left a debatable constitutional judgement.
The court further reasoned its judgment on two focal points viz. the
interpretation of Section 144 of Criminal code and "the right to freedom of
speech and expression and the right to carry on any trade or business, using the
medium of the internet are constitutionally protected." The Court held while
interpreting Section 144 of the Code that this provision can be only exercised
when there exists both present and apprehension of danger, it cannot be used to
defeat valid expression. The magistrate is not only bound to apply the principle
of proportionality while imposing limitations but is also bound to make an order
under Section 144 in a manner that enables judicial review.
In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr
, the Supreme
Court while laying the extent of the powers that can be exercised under the
provision Section 144 Cr.P.C , held that "the emergency must be sudden and the
consequences sufficiently grave"; and that it must be exercised judicially. In
Ram Manohar Lohia v. State of Bihar
, "the Court distinguished between
'law and order' and 'public order', former being the larger circle and
comprising the latter in its ambit. Therefore, the Court held that mere
disturbance in law and order may not necessarily lead to a breach of public
Secondly, while discussing the notion of Internet Shutdown and its impact on
fundamental rights, the court began its discussion noting that "procedural
justice cannot be sacrificed at the altar of substantive justice". Human
rights theory is composed of Derivative rights which further have auxiliary
rights that help to expedite exercise of a fundamental right. The Court in the
current case relied on past precedents while holding that internet access is a
derivative fundamental right that helps to enable the exercise of primary
In the Anuradha Bhasin case
, the court took reliance on a concatenation
of judgments, which recognize free speech as a fundamental right, and with time
due to the evolution of technology, it has recognized the freedom of speech and
expression on various media. "The Apex Court finally recognized the significance
of the internet as a tool for the promulgation of information and trade and
commerce in contemporary times, and finally concluded 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
Further court in this judgment, asserts that all fundamental rights are negative
in nature exception being the fundamental right to education provided under
Article 21A, which is in itself questionable in nature as the Indian Supreme
Court, "has recognized various socio-economic rights which impose positive
obligations on the State to provide food education and healthcare as a part of
the fundamental right to life with human dignity under Article 21."
Therefore, it is clear that there is no justification to curtailing or limiting
the purview of the right to internet access. Treating the right as a negative
right rather than a positive obligation only provides partial safeguards i.e.,
against interference by the government and exempts the government from creating
requisite infrastructure for facilitation of access to the internet. Further,
the Court's decision goes against the policy followed by the government which
recognizes access to the internet as a fundamental service but is also seeking
universal broadband coverage.
Concerning the final issue of whether the freedom of the press of the petitioner
was violated due to the restrictions, the Court observed that the petitioner
failed to produce any cogent evidence that the restrictions imposed had affected
the freedom of the press like the publication and distribution of newspapers.
The Court therefore could not distinguish whether this was a valid claim or
merely an emotional argument for self-fulfillment.
Since the publication of the petitioner had recommenced their work, the Court
didn't want to indulge in the matter.
Conclusion and Way Forward
After the thorough perusal of this case we can conclude that though the Right to
Internet has not been explicitly declared as a separate fundamental right, the
court has recognized a derivative fundamental right to access of internet. "It
was held that the internet is a medium through which other fundamental rights
are exercised and that the freedom of speech and expression through the medium
of the internet is an integral part of Article 19(1) (a) and accordingly, any
restriction on the same must be in accordance with Article 19(2) of the
In the context of internet shutdowns, a three-pronged test of Article 19(2)
demands that any limits on freedom of speech be constitutional, legitimate, and
reasonable. As a result, the constitutionality of any internet shutdown would
have to be assessed using the same criteria used to assess limits on freedom of
The judgment mandates that suspension orders granted under the Suspension Rules
be reviewed regularly to ensure that they do not become permanent. With time,
we'll be able to see how this safeguard works in practice. What is the frequency
of the review committee's meetings to discuss the shutdowns?
Secondly, it's critical to consider the alternatives provided by modern
technology for limiting censorship to only the websites, locations, and
communication channels where it's considered required.
- Vinton G. Cerf, "Internet Access is not a Human Right", The New York
Times, Jan. 04, 2012.
- Report of the Special Rapporteur on the "promotion and protection of the
right to freedom of opinion and expression", Frank La Rue, May 16, 2011,
Human Rights Council, Official Record, U.N. Document A/HRC/17/27, 19,
available at https://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf,
(last visited on 03/09/2021.)
- WP(C)No.19716 OF 2019(L)
- (1995) 2 SCC 161
- (2015) 5 SCC 1
- Anuradha Bhasin & Anr. v. Union of India & Ors., AIR 2020 SC 1308
- K.S. Puttaswamy & Ors. v. Union of India & Ors., 2017 10 SCC 1. The
proportionality standard requires any government measure which restricts
fundamental rights to satisfy the following criteria: (i) the measure must
have a basis in law (Legality Stage); (ii) the measure must pursue a
legitimate goal (Legitimacy Stage); (iii) the measure must be a suitable
method for achieving the goal (Suitability Stage); (iv) the measure must be
the least restrictive alternative to achieve the goal (Necessity Stage); and
(v) the measure must not have a disproportionate impact on the right holder
- Supra 6 at 140
- See Article 359, The Constitution of India, 1950.
- See Haradhan Shah v. State of West Bengal, 1975 3 SCC 198; AK Roy v.
Union of India, 1982 1 SCC 271; Kartar Singh v. State of Punjab, 1994 3 SCC
569; Peoples' Union of Civil Liberties v. Union of India, 2004 9 SCC 580
- (1970) 3 SCC 746.
- 1966 AIR 740
- Supra 6, at 86.
- Supra 6, at 31.
- Peoples' Union of Civil Liberties v. Union of India, Writ Petition
(Civil) No. 196 of 2001 (Right to Food); Unnikrishnan v. State of Andhra
Pradesh, 1993 SCR 1 594 (Right to Education); Paschim Banga Khet Mazdoor
Samity v. State of West Bengal, 1996 4 SCC 37 (Right to Health).
- Supra 6 at 31
Written By: Hiten Chugh and Jasmine Walia