Court: Supreme Court of India
· Judges: Justice N.V. Ramana, Justice B.R. Gavai and Justice Subhash Reddy
· Citation: AIR 2020 SC 1308
Case No.: Writ Petition (Civil) No. 1031 of 2019
Case Type: Writ Petition
Petitioner: Anuradha Bhasin and Ors.
Respondent: Union of India and Ors.
BACKGROUND
The case of Anuradha Bhasin vs. union of India is considered as one of the landmark judgment of constitutional law since it dives deep into the matters relating with freedom of speech and expression .The judgment in the case of Anuradha Bhasin vs. union of India has made an implacable impact on the constitutional law of India to a very large extent.
The case alarmed the internet and movement restrictions carried out in the Jammu and Kashmir region in India on August 4, 2019, in the term of protecting public order.
The Court restated that freedom of expression online relished Constitutional protection, but could be limited in the name of national security. The Court held that though the Government was authorized to carry out a complete internet shutdown, any order imposing such restrictions had to be made public and was matter to judicial review.
FACTS
On August 5, 2019, the Indian Government issued Constitution (Application to Jammu and Kashmir) Order, 2019, which stripped Jammu and Kashmir of its special status that it had enjoyed since 1954 and made it fully subservient to all provisions of the Constitution of India. The Indian government began imposing restrictions on online communication and freedom of movement. On 2 August , the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advised tourists and Amarnath Yatra pilgrims to leave the Jammu and Kashmir area in India. Subsequently, schools and offices were ordered to remain closed until further notice. On August 4, 2019, mobile phone networks, internet services, landline connectivity were all shutdown in the region. The District Magistrates imposed additional restrictions on freedoms of movement and public assembly citing authority to do so under Section 144 of the Criminal Penal Code.[1]
The internet shutdown and movement restrictions, restricted the ability of journalists to travel and to publish and consequently were challenged in court for their violation of Article 19 of the Constitution of India , which assures the right to freedom of expression. In this perspective, the Supreme Court of India looks over the subsequent petitions challenging the legality of the internet shutdown and movement restrictions.
The petition was conveyed by Ms. Anuradha Bhasin, the editor of the Kashmir Times Srinagar Edition. She debated that the internet is an important technology for the modern press and that by shutting the internet down, the authorities forced the print media to come to “a grinding halt.” And Because of this reason she had been unable to issue her newspaper since August 6, 2019.
She also argued that the government failed to consider whether the internet shutdown was reasonable and proportionate to the aims it pursued. She argued that the restrictions were passed in the belief that there would be “a danger to law and order. However, public order is not the same as law and order and neither was at risk when the order was passed.”[2]
The Attorney General said that the restrictions were measures to stop terrorist acts and were reasonable considering the history of cross border terrorism and internal militancy that had long back weighed down the State of Jammu and Kashmir. The Attorney General recalled that similar steps had been taken in the past, for example, in 2016 after a terrorist had been killed there.
Specifically, concerning the communications and internet shutdown, the Solicitor General assented that the internet was never restricted in the Jammu and Ladakh regions. He added that social media, which allowed people to send messages and communicate with a number of people at the same time, could be used as a means to incite violence. According to him, the internet allowed for the transmission of false news or fake images, which were then used to spread violence. Further, he claimed that the “dark web” allowed individuals to purchase weapons and illegal substances easily.[3]
On August 5th, 2019, a Constitutional Order No. 272 issued by the President of India smearing every provisions of the Constitution of India to the State of Jammu and Kashmir, and adjusting article 360 of Indian Constitution in the State of Jammu and Kashmir.
Subsequently to this, the District Magistrate of Jammu and Kashmir imposed restrictions under section 144, controlling the public gathering and movement taken in for questioning breach of peace and tranquility in the state.
Movements of journalists were restricted and this was challenged under article 19 of Indian Constitution which guarantees freedom of speech and expression and freedom to carry any trade or occupation. Correspondingly the lawfulness of shutting down the internet connection and restricting movements in the State of Jammu and Kashmir was defied in the Honorable Supreme Court of India under article 32 of the Constitution of India.
ISSUES
- Whether the Government can claim exemption from producing all the orders passed under section 144 and others under suspension rules?
- Whether imposing restrictions under section 144 are valid?
- Whether 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 protected by Article 19(1) (a) and Article 19(1) (g) of the Constitution?
- Whether the Government’s action of prohibiting internet access in the state is valid or not?
- Whether the imposition of movement restrictions under Section 144 of the Code of Criminal Procedure was valid?
ARGUMENTS
Petitioner’s Argument:[4]
The Petitioner – Ms. Anuradha Bhasin, the Executive Editor of the Kashmir Times Srinagar Edition, put up with the matter that internet is crucial for modern press, without which print media has come to “grinding halt”. She acquiesced that since August 6th, 2019, she was unable to publish her newspaper. Following arguments were contended by the petitioner
- That some trades are completely dependent on internet. This Right to trade through internet also raises consumerism and provides wide availability to choose different goods and services.
- That the Freedom of Trade and Commerce through the medium of internet is protected under Article 19 (1) (g) of Indian Constitution, which is subject to certain restrictions stated under Article 19 (6) of Indian Constitution.
- That the restrictions imposed in the state under section 144 were neither reasonable nor proportional with the aim of the public policy. It was asserted that “public order” is different from “law and order”. The restrictions were imposed as argued by the respondents was due to a threat to law and order.
- That, neither of those two expressions was at risk before passing the order of restriction under section 144. It was also pleaded by the respondents that these restrictions were temporary in nature, but they have been enforced for more than 100 days.[5]
- The government should impose less restrictive measures and must balance the Fundamental Rights of the citizens of India as well as maintain the security of people.
- That imposing restrictions on the internet in the whole State of Jammu and Kashmir impacts both Freedom of Speech and Expression and Freedom to carry any Trade, Profession or Occupation.
Respondent’s Argument*[6]
Following arguments were made by the Mr. K.K. Venugopal, the learned Attorney General for Union of India and Mr. Tushar Mehta, the Solicitor General of the State of Jammu and Kashmir:
- Those restrictions on internet in the State of Jammu and Kashmir were essential in order to combat terrorism.
- That the standard of free speech and expression cannot be applied to the internet in the view of the fact that internet is boundless as it opens up for a two-way communication through the engagement on social media and the dangers of the dark web is also present.
- That particular websites could not be targeted, but instead, the internet as a whole was supposed to be shut down in the state of Jammu and Kashmir.
- That the claims made by plaintiff on the stringency of the restrictions on internet were grossly exaggerated.
JUDGEMENTS:
Following was held by the judges:
- That the orders for restrictions as cited under section 144 of Criminal Procedure Code, 1973 and orders for internet suspension for a temporary period of time must be available for general public at the earliest.
- That section 144 of Criminal Procedure Code, 1973 cannot be used to quash the legitimate exercise of fundamental rights. Such powers should be fixed to deal with emergencies that are likely to cause obstruction, annoyance, or injury to persons. And they are subject to inquiry by the judiciary.
- That Freedom of Speech and Expression as sated under article 19(1 (a) of the Indian constitution enjoys constitutional protection over the medium of the internet.
CONCLUSION
The case of Anuradha Bhasin vs. union of India shows us the importance of technology in modern time without which we cannot publish , print or make various subtle other social; media engagements. The judgment was well put together. The case has successfully set a standard to consider that Freedom of Speech and Expression and Freedom to Practice any Profession or carry on any Trade, Business or Occupation through medium of internet is a Fundamental Right which is guaranteed as well as protected under Article 19 of the Constitution of India.
[1] Global Freedom of Expression, Columbia University, Bhasin vs. Union of India, available at https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/, last seen on 11/04/2023.
[2] Global Freedom of Expression, Columbia University, Bhasin vs. Union of India, available at https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/, last seen on 11/04/2023
[3] Global Freedom of Expression, Columbia University, Bhasin vs. Union of India, available at https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/, last seen on 11/04/2023
[4] Arushi Jain, [Case Brief] Anuradha Bhasin V. Union of India, available at https://www.mylawman.co.in/2022/02/case-brief-anuradha-bhasin-v-union-of.html, last seen on 11/04/2023
[5] Arushi Jain, [Case Brief] Anuradha Bhasin V. Union of India, available at https://www.mylawman.co.in/2022/02/case-brief-anuradha-bhasin-v-union-of.html, last seen on 11/04/2023
[6] Arushi Jain, [Case Brief] Anuradha Bhasin V. Union of India, available at https://www.mylawman.co.in/2022/02/case-brief-anuradha-bhasin-v-union-of.html, last seen on 11/04/2023
This article is written by Nandini Saikia, Gauhati University, an intern under Legal Vidhiya.
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