This Case Analysis is written by Mashish Saxena, a Third Year B.A LL.B (Hons.) Student at PES Modern Law College, Pune.
Anuradha Bhasin vs. Union of India : Case Analysis
Citation : 2019 SCC OnLine SC 1725
Court : Supreme Court of India
Bench : N.V. Ramana, V. Ramasubramanian
Petitioners : Anuradha Bhasin, Ghulam Nabi Azad
Respondents : Mr. K.K Venugopal, lead Attorney General for Union of India, and Mr. Tushar Mehta, Solicitor General for the state of Jammu and Kashmir.
In the current case, the supreme court (SC) of India held that an inconclusive suspension of internet providers would be illicit under Indian law and that request for web closure must fulfill the trial of need and proportionality.
The court additionally coordinated the government. To audit the closure request against the test plot in its judgment and lift those that were a bit much or didn’t have a worldly cutoff.
Throughout Indian history, Jammu and Kashmir faced the most prolonged internet shutdown between 4th august 2019 to 4th March 2020. It happened right after the Indian government abolished article 370 of the constitution. Jammu and Kashmir’s status of the state was removed two separate union territories have been created, namely Jammu and Kashmir and union territory of Ladakh.
Issues began, however, on 5th august 2019 when the constitution order 272 was issued by the president which applied all the provisions of the constitution of India to the state of Jammu and Kashmir. While modifying article 367 thus tripping Jammu and Kashmir of the special status enjoyed since 1954. Subsequently, tourists in this region are asked to stay short and arrangements were made to go back home and all educational institutions and offices shut down until further notice. Due to these circumstances, an order was passed by the district magistrate, restricting the movement and public gathering to maintain peace under section144 CrPC. And on 4th august 2019 internet services were banned and landlines were shut down until further notice.
In this case, two writ petitions were heard and disposed of together, that is writ petition no. 1031 of 2019 by Ms. Anuradha Bhasin, the editor of the Kashmir Times Srinagar Edition, she argued that the internet is essential for modern press and by shutting it down it forced the print media to come to ‘a grinding halt’ and writ petition no.1164 of 2019 by Mr. Gulam Nabi Azad, he argued that restrictions must be based on objectives reasons and not merely on conjectures.
ISSUES AT HAND
- 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 Indian Constitution?
- Whether the freedom of the press of the petitioner was violated due to the restriction?
- Whether the action of the government prohibiting the access to internet valid?
- Whether the imposition of restriction under Section 144 of crpc valid?
- Whether the government can claim exemption from producing all the orders passed under Section 144 of the CPC and Suspension Rules?
COURT RATIONALE ON MENTIONED ISSUES :
The SC held that the freedom of speech and expression included the internet as an integral part. The court emphasizes the ruling in the case of Indian express vs. Union of India, which declares the freedom of print media as a fundamental right under Article 19(1) (A). Subsequently, in Odyssey Communications Pvt. Ltd. V. Lokvidayan Sanghatana, it was held that it is the right of citizens to exhibit frames, which is now protected under Article 19(1)(a). The court didn’t express any view on declaring the right to excess the internet as a fundamental right, as the council didn’t argue it from the petitioner side.
The court however held that the right to freedom of speech and expression under Article 19(1) (G) using the medium of internet is constitutionally protected. It states that any curtailment of internet access should be reasonable and within boundaries laid down by Article 19 (2) and Article 19 (6).
The court rejected this plea as the petitioner failed to offer any concrete evidence that the restriction imposed restricted the freedom of the press. Like publication of newspapers and distribution of the same. The court as a result couldn’t discover whether the claim was legitimate or not. Also, the petitioner had resumed the publication and it held not to be violative and believed that the government was taking care of the freedom of the press.
The court held that the legislature couldn’t vanquish the authentic articulation of feeling or complaint or exercise of any democratic rights. Section 144 can only be imposed in an emergency and not for the prevention of instruction or injury to any law employed. Near disturbance in law or order necessarily doesn’t lead to a breach of public order. The magistrate and the state only have the right to decide whether there is a possibility of a threat to public peace. A citizen shouldn’t be deprived of his liberty unless this situation is hazardous and the imposition of such orders in other circumstances is a clear abuse of power.
The court held that the state had to publish the order that placed restrictions before the court. The legality of the limitation was hard to determine as the state refused to produce the order before the court. The state could provide all relevant information necessary which comes under the limitation of article 19 including the right to information. The state had no reason to pass such a restriction based on near apprehension of danger. It can’t be a valid ground to refuse to produce the order.
In this court had to look both in procedural and substantial elements to determine the constitutionality of the internet shut down. The procedural part has two components: contractual and statutory. The statutory part is mentioned under the information technology act, crpc, and telegraph act. The contractual element is between internet providers and the government.
The court held that the suspension of internet services is impermissible under section 5 (2) of the telegraph act permit the suspension under certain circumstances, public emergency, or in the matter of public safety. To pass such an order the existence of the emergency needs to be determined, the suspension rule doesn’t mention the maximum duration of the suspension order. So it is up to the review committee to determine the period or reasonable grounds.
The court held that the internet is essential in today’s life and thereby freedom of speech and expression, and freedom to practice any profession or occupation or trade on the internet is a part of fundamental right under part III of the constitution. Prevention in accessing the internet can only be valid in certain circumstances. Otherwise, it ceases to exist, prohibiting access to it affects the fundamental right of the people.
Therefore, the court order to follow the test of proportionality to satisfy the concept of natural justice. The court widely interpreted freedom of speech and expression but including the right to excess the internet and stated it could only be restricted in situations of national emergency. However, the court didn’t remove restrictions on the internet and the movement of citizens in the current scenario. It will be seen that the judgment provides immediate relief to the citizens by laying down principles for future suspension orders and their procedure. It prevents the state from abusing its power for now and even in the future. The court even held that the government can’t claim any exception from producing any order before the court passed under section 144 of crpc.
So to conclude, the world is a global village, and the internet is an integral part of the modern-day. Depriving the internet to its citizens disturbs the functioning of various activities, which could prove to be a hindrance to the growth of the state. The case proves to be precedent in the subsequent instances in which, right to excess to the internet as a fundamental right is deprived.
 Indian Express Newspaper (Bombay) Pvt. Ltd v. Union of India, (1985) 2 SCR 287
 Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatan, (1988) 3 SCC 410.