Case Analysis: Anuradha Bhasin v Union of India (2020)

The Case Analysis of Anuradha Bhasin v Union of India has enumerated the role of the internet in a person’s life and government rights in case of internet curtailment. This case is extremely significant as the Court has held that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation through the internet is a fundamental right protected and guaranteed under Article 19 of the constitution, The Court has also clarified that all the orders of the Government must be made public. Further, the court has relied on the test of proportionality and reasonableness in the case.

Citation: AIR 2020 SC 1308[1]

Judges: Hon’ble Justice N. V. Ramana, Justice Subhash Reddy, Justice B. R Gavai

Facts

This case arises in the context of the internet shutdown and the restriction of movement in Jammu and Kashmir.

The internet connections in Jammu and Kashmir had been restricted in August 2019, before the Constitutional Amendment diluting Article 370 and reorganising the State of Jammu and Kashmir into Union Territories was passed by Parliament.

The petitioner, Anuradha Bhasin, editor of Srinagar Times, argued that the internet is an essential part of the modern-day press and restrictions on internet use affected the freedom of the press and the right to the profession under Article 19.

Issues

1. Whether the Government can claim exemption from producing all orders passed under section 144 of CrPC and others under suspension rules?
2. Whether freedom of speech and expression and freedom to practise any profession, or to carry out any trade, occupation or business over the internet is 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 of CrPC is valid?

Arguments

Petitioners Arguments

1. Petitioners argued that there are certain trades which are completely dependent on the internet. Such a right of trade through the internet also fosters consumerism and the availability of choice.
2. Petitioners further contended the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1) (g), subject to the restrictions provided under Article 19(6).
3. Furthermore, it was argued that the restrictions were not reasonable nor proportional to the aim of the policy. It was argued that “public order” is different from “law and order”. The restrictions were imposed due to danger to law and order.
4. However, apart from that, neither of these two expressions was at risk before passing the order. Lastly, it was also submitted that these restrictions were meant to be temporary in nature, but they have been in place for more than 100 days.
5. In other writ petition, the petitioner was Mr. Ghulam Nabi Azad, a member of parliament from Jammu and Kashmir. In this petition, it was argued that the extent of the restriction on movement must be specific; it cannot apply to an entire State. Moreover, all orders of state must be published and accessible in the public domain. The state must have adopted the least restrictive alternative

Respondents Arguments

1. Respondents argued that the restrictions were necessary to combat terrorism in Jammu and Kashmir.
2. Respondents further argued that the general free speech standard could not be applied to the internet as the internet is vast, opens up for two-way communication through engagement on social media and the dangers of the dark web.
3. It was submitted that just a few select websites could not be targeted, but instead, the internet as a whole was shut down. Lastly, they also argued that the claims made on the stringency of the restrictions were grossly exaggerated.

Judgement

1. The respondent state/competent authorities were directed to publish all orders in force and any future orders under section 144, code of criminal procedure and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the high court or appropriate forum.
2. The freedom of speech and expression and the freedom to practice any profession or carry o any trade, business or occupation over the medium of the internet enjoys constitutional protection under Article 19(1) (a) and Article 19(1) (g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19(2) and (6) of the constitution, inclusive of the test of proportionally.
3. An order suspending internet services indefinitely was impermissible under the temporary suspension of telecom services (Public Emergency or public service) Rules, 2017. The suspension could be utilized for the temporary duration only.
4. Any order suspending internet issued under the suspension rules must adhere to the principle of proportionality and must not extend beyond the necessary duration.
5. Any order suspending the internet under the suspension rules was subject to judicial review based on the parameters set out.
6. The existing suspension rules neither provide for a periodic review nor a time limitation for an order issued under the suspension rules. Till this gap was filled, this court direct that the review committee constituted under rule 2(5) of the suspension rules must conduct a periodic review within seven working days of the preview, in terms of the requirements under rule2(6)
7. This court directs the respondent state/competent authorities to review all orders suspending internet services forthwith.
8. Orders not in accordance with the law laid down above must be revoked. Further, in future, if there was a necessity to pass fresh orders, the law laid down here must be followed.
9. In any case, the state/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e-banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.
10. The power under section 144, code of criminal procedure, being remedial as well as preventive, was exercisable not only where there exists present danger, but also when there was an apprehension of danger. However, the danger contemplated should be in the nature of the emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.

Conclusion

The internet is also a valid tool for trade and commerce. The globalisation of Indian advanced information and technology has opened up vast business avenues and transformed India into a global IT hub.

There was no doubt that there are certain trades which are completely dependent on the internet. Such a right of trade through the internet also fosters consumerism and the availability of choice.

Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).

Justice Ramana concluded it by stating that, in view of the facts, and considering that the petitioner had now resumed publication this court did not deem it fit to indulge more in the issue than to state that government are required to respect the freedom of the press at all times. Journalists were to be accommodated in reporting, and there was no justification for allowing a sword of Damocles to hang over the press indefinitely.

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[1] Full Judgment Text, Available Here

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