Overview: Anuradha Bhasin vs Union of India
The Supreme Court’s judgement, in this case, is the very first step in the right direction bringing about strong legal footing required to curb the arbitrary and unlawful restrictions imposed in Jammu and Kashmir on the 4th of August 2019. It ruled that putting an indefinite restriction on all forms of communication in a region is illegal and the execution of any such law needs to satisfy the tests of ‘necessity and proportionality’ while also being made public and a subject to judicial review. The decision, however, fails to provide any immediate relief to the Kashmiris who have already suffered numerous hardships in the name of national security as it did not lift the internet restrictions and instead directed the government to review the shutdown based on the tests and provisions specified in the judgement.
Facts of the Case: Anuradha Bhasin vs Union of India
Government of India issued Constitution (Application to Jammu and Kashmir) Order 2019 on 5th August stripping it of its special status under Article 370 of the Constitution and made it completely subservient to all provisions of the Constitution of India. Many restrictions were imposed in the state leading up to the days of the Order. All tourists and Amar Nath Yatra pilgrims were asked to leave the state on the 2nd of August itself followed by an indefinite shutdown of schools and colleges until further notice. On the 4th, internet services along with mobile phone networks and landline connectivity were all shut down. The District Magistrates even imposed Section 144 of CrPC banning freedom of movement and public assembly thereby restricting all forms of communication.
All of these decisions put a halt in the day to day life of common law-abiding citizens along with journalists who could no longer exercise their fundamental right to freedom of expression since their ability to travel and publish had been curbed. Aggrieved by the same, Ms. Anuradha Bhasin (the editor of the Kashmir Times, Srinagar Edition) and Mr. Ghulam Nabi Azad (a Member of Parliament belonging to the largest opposition party in India’s upper house) filed a petition.
- Government failed to consider whether the internet shutdown was even reasonable and proportionate to the aims it pursued.
- Giving the government a free hand in imposing restrictions in the name of national security will allow it to curb the fundamental rights of citizens at will.
- What was supposed to be a temporary restriction lasted for more than 100 days.
- It even censored the possible discussions and opposing arguments relating to the passage of the Constitutional Order.
- The orders weren’t issued keeping in mind the proportionality of the measures and even failed to prove the necessity of the actions.
- The official orders must not be kept secret by the State and should be based on objective reasons rather than on broad conjectures.
- State emergency as declared by the government under Article 356 needs to be based on either ‘internal disturbance’ or ‘external aggression’, neither of which was the case in the present scenario.
- The restrictions imposed should have been specific by only targeting those who might disturb the peace and not against the entire public.
- Internet restrictions not only curbed the freedom of expressions but also the right to trade and the ability of political representatives to communicate with their constituencies.
- State didn’t attempt to balance the safety of people with the lawful exercise of their fundamental rights.
K.K. Venugopal, Attorney General of India
- He highlighted the history of cross border terrorism and internal militancy and submitted that it would be naïve not to take any preventive measures beforehand by bringing to light a similar measure taken in 2016 after the murder of a terrorist.
Tushar Mehta, Solicitor General of India
- He argued that the steps were taken keeping in mind the safety of the citizens of the State. He reiterated his statement by arguing that before the Order, the issue was a subject to a lot of speculation which incited provocative speeches and messages.
- He submitted that restrictions were only imposed in a few areas and were soon relaxed. He noted that individual movement was never restricted and all television and radio channels were functioning.
- He also stressed that Jammu and Ladakh region had no shutdown with regards to communication or internet. It was only done in the Kashmir region as social media was being used to spread fake information with the motive of inciting unrest and violence. He further claimed the harms of ‘dark web’ being used as a place to buy illegal weapons and substances from.
- He argued that the free speech standard doesn’t apply to the internet as it applies to newspapers as the latter is just a one-way communication forum while the former makes it possible to have a both way communication. He even stressed how banning only certain parts of the internet wasn’t possible.
Decision in Anuradha Bhasin vs Union of India
The Supreme Court tried “to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner,” and leave the “propriety “of the orders at issue for “democratic forces to act on.” The court went on to answer 5 issues highlighted by both the parties.
- Could the Government claim exemption from producing all orders for the restrictions?
The Court cited the precedent in Ram Jethmalani v. Union of India in explaining its decision about how the State has an obligation to disclose all the information in order to satisfy the Right to Remedy as established in Article 32 of the Constitution. It also stated how Right to Information is an integral part of the right to freedom of speech and expression contained in Article 19. The State isn’t allowed to curb any fundamental right without making the law related to the same public. In cases concerning secrecy, The Court will decide about what facts to disclose and what not to which clearly wasn’t followed in the given scenario.
- Did the restrictions affect freedom of movement, freedom of speech and expression and right to free trade and vocation?
The Court held that all forms of online expression, communication and anything that has to do with the internet is integral to the enjoyment of freedom of speech and expression guaranteed under Article 19(1)(a). By citing the judgements in Indian Express v. Union of India and Odyssey Communications Pvt. Ltd. V. Lokvidayan Sanghatana, the Court reiterated the extended protections to new mediums of expression like print and media. It also held that the freedom of trade and commerce via the internet was also protected under Article 19(1)(g). The Court, however, didn’t declare access to internet as a fundamental right as none of the parties demanded that. Although, it went ahead to list an exhaustive list of restrictions upon the freedom to expression under Article 19(2) which includes “interests of the sovereignty, integrity, security, friendly relations with the foreign States, public order, decency or morality or contempt of Court, defamation or incitement to an offence.” It went on to explain how the government can impose complete restrictions as long as they are reasonable, prescribed by law and do not excessively burden the free speech. This, however, can only be done after explaining why lesser alternatives are not sufficient and can only be determined by the court based on the circumstance of each case.
The Court then went on to assert that “the war on terror” was not like other territorial fights and was affecting normal day-to-day life and hence, could not be treated as a law and order situation.
The Court cited various American cases and came to the conclusion that Rights (both constitutional and fundamental) can be curtailed in the name of national security but the way to do that would be according to the ‘Proportionality Test’. They called it the key to ensuring that a right isn’t infringed more than what is necessary.
- Can the internet be legally shut down by the Government?
The Court, as mentioned above, didn’t declare access to the internet as a fundamental right but did outright rejected the State’s justification for a total ban on the internet due to lack of appropriate technology required to ban certain dangerous sites. It relied on statutory provisions laid down under the Information Technology Act, 2000, the Code of Criminal Procedure, 1973 and the Telegraph Act. Section 7 of the Telegraph Act allowed the government to restrict telecom and internet services subject to certain safeguards while Section 5(2) permitted the same only in situations of public emergency or public safety. It reiterated that an aggrieved citizen can complain in the court to lift the Suspension Order under Article 226 of the Constitution. It was also noted that since the maximum duration of such a ban isn’t mentioned, it should be decided by the Review Committee set up under Section 7 of the Telegraph Act on a case-to-case basis. It was concluded that any restriction can only be imposed if it is found to be unavoidable and necessary with no other alternative at hand and not beyond a reasonable period.
- Were the restrictions imposed under Section 144 of the Criminal Procedure Code valid?
The Court after listening to both sides established that the power under Section 144 could be exercised “not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an ‘emergency’ and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.” Orders under the given Section cannot be used casually to suppress legitimate expression but should only be used in the presence of lawful material facts justifying its application.
- Whether the restrictions violated the freedom of the press?
The Court rejected the Petitioners claim that the restrictions directly curtailed their freedom of press and ability to practice their profession since they could not offer any evidence with regards to the same. It was also stated that the Indian Constitution protected the right to freedom of press since as early as in 1914 through the judgement delivered in the case of Channing Arnold v. The Emperor.
The Supreme Court held that the “freedom of expression and the freedom to practice any profession online” are protected under Article 19(1)(a) and 19(1)(g). It also ordered the government to review its suspension and restrictions and lift those that are unnecessary and not temporary. It allowed the suspension of rights only where necessary and impose a temporal limit. It specified that restrictions under Section 144 of CrPC needs to be reviewed again by the state as it falls under judicial scrutiny.
Anuradha Bhasin vs Union of India