ANURADHA BHASIN V. UNION OF INDIA (UOI)

 

ANURADHA BHASIN V. UNION OF INDIA (UOI)

 

Citation : 2019 SCC OnLine SC 1725

Court : Supreme Court of India

Bench : N.V. Ramana, V. Ramasubramanian

Petitiones: 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.

 

FACT OF THE CASE :

 

The issue begins from 4.08.19 when mobile phone networks, internet services, landline connectivity were all discontinued in the valley. On 5.08.19, following the constitutional order 272 issued by the President, the district magistrate subsequently imposed restrictions on movement and public gathering.

In the light of the aforesaid restrictions, the petitioner of W.P (C) No.1031 of 2019 Ms. Anuradha bhasin , the executive editor of the Kashmir Times Srinagar edition, was severely affected as she couldn’t distribute Kashmir Times Srinagar edition on 5.08.2019 and publish the same from 6.08.2019. Accordingly, the petitioner filed a writ petition under Article 32 of the Constitution.

Another Petition of W.P. (C) No.1164 of 2019 was filed by Mr. Ghulam Nabi Azad, Member of Parliament, aggrieved by the aforesaid restrictions, alleging that his communication with the people of his community was halted by restricting him from travelling to his constituency. However, this petition was withdrawn during the arguments.

 

ISSUE RAISED:

●      Whether the Government can claim exemption from producing all the orders passed under Section 144, CrPC and other orders under the Suspension Rules?

●      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 Constitution?

●      Whether the Government’s action of prohibiting internet access is valid?

●      Whether the imposition of restrictions under Section 144, CrPc were valid?

●      Whether the freedom of press of the Petitioner was violated due to the restrictions?

 

CONTENTION :

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.

ISSUES :

 Issue 1- Learned senior counsel submitted that the orders of the authorities had to be produced before the Court, and cannot be the subject of privilege, as claimed by the State. It was submitted that the conduct of the State, in producing documents and status reports during argumentation, was improper, as it did not allow the Petitioners with sufficient opportunity to rebut the same. It was further contended that as per the principles of natural law. The necessity of publication of law is a part of the rule of natural justice. Not only must the orders be published, it is also necessary that these orders be made available and accessible to the public. The State cannot refuse to produce the orders before the Court or claim any privilege.

The orders passed under Section 144 of CrPC can be deemed to be preventive in nature concerning the security and safety of the citizens. He submitted that seeing the situation of unrest in regard to the abrogation of Art.370 and the violence marred historical background of Jammu and Kashmir, order passed can be justified under the maintenance of “the security of the state”.

Issue 2- Both the learned counsels representing the petitioners contented that the absolute restriction on internet was not necessary and that a less restrictive way could have been undertaken rather than a blanket order. The petitioners jobs suffered because the petitioner, being executive editor of one of the major newspapers, was not able to function post 05.08.2019, due to various restrictions imposed on the press. Print media came to a grinding halt due to non−availability of internet services, which in her view, is absolutely essential for the modern press. Curtailment of the internet, is a restriction on the right to free speech, should be tested on the basis of reasonableness and proportionality. Also, freedom to speech and expression must enable an individual.

The learned Solicitor General contended that the jurisprudence on free speech relating to newspapers is different when applied to the internet, as both the media are different in nature. While newspapers only allowed one way communication, the internet makes two way communication by which spreading of messages is very easy. This inturn often spreads hateful and false messages endangering the security and peace of the area. The different context should be kept in mind by the Court while dealing with the restrictions with respect to the two media.

Issue 3-The learned council contended that, The State ought to balance the safety of its people with their lawful exercise of the fundamental rights provided to them. On internet restrictions, the learned senior counsel contended that such restrictions not only impact the right to free speech of individuals but also impinges on their right to trade. Therefore, less restrictive measures, such as restricting only social media websites like Facebook and Whatsapp, should and could have been passed, as has previously been done in India in line with prohibiting human trafficking and child pornography websites.

The learned Solicitor General submitted that it was practically impossible to segregate, and control, the troublemakers from the ordinary citizens. Further, he submitted 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; hate messages could be sent in light of the recent abrogation of Art.370. Hence, The purpose of the limited and restricted use of internet is to ensure that the situation on the ground would not be provoked by targeted messages from outside the country.

Issue 4-The learned senior counsel contended that such an order is made to deal with a law and order situation, but the orders do not indicate any existing law and order issue, or apprehension there of. Learned senior counsel pointed out that the order of the Magistrate under Section 144, Cr.P.C. cannot be passed to the public generally, and must be specifically against the people or the group which is apprehended to disturb the peace. It is necessary for the State to identify the persons causing the problem, and an entire State cannot be brought to a halt.

Both the learned Attorney General and Solicitor general contended that given the historical and political background of the State of Jammu and Kashmir  it  is evident that the state is prone to violence and both physical and digital cross violent terrorism ; which validated the the necessity of the orders under Section 144, Cr.P.C.

Issue 5-The petitioners contended that restrictions on travelling and interned directly intervened in their job of publishing daily news; including the discussion on the abrogation of Art.370. Lastly, the learned senior counsel emphasized that the restrictions that were imposed are meant to be temporary in nature, have lasted for more than 100 days, which fact should be taken into account by this Court while deciding the matter; crippling their day to day functioning.

The learned Solicitor General submitted various figures indicating that the people were leading their ordinary lives in the State. He submitted that all newspapers, television and radio channels are functioning, including from Srinagar, where the petitioner was situated.

 

CONCLUSION :

 

The court passed numerous judgments in this case. To summarize, the Supreme Court held that the Government cannot claim exemption from producing any order under Section 144 of Code of Criminal procedure, 1973 and suspension rules. Although, the question of whether the government can claim exemption or not is to be decided by the court on a case to case basis depending upon the facts and circumstances. Further, the court held that nowadays the internet being an essential part of everyday life and thereby right to freedom of speech and expression and right to carry out trade, occupation, or business over the internet is a part of the fundamental right enriched under Part III of the Indian Constitution. 

 

The court concerning issue 1, directed the state to present all the orders which led to the imposition of Section 144 of the Code of Criminal Procedure, 1973 on the Internet and other telecom services. This directive by the court is justified as such restriction violated the fundamental rights of the citizens. So, the people have the right to know, on which ground, such restrictions were imposed by the state.

 

In my opinion, the judgment by the court laid down the principle of proportionality and reasonableness. But considering the fact that a complete ban on the internet has been fatal to the economy of the state, the relief provided by the court is not as to what was expected. Just because the banning of the internet is the easiest thing to do, the government should not utilize such means randomly but rather deal with it through democratic means which do not diminish the basic fundamental rights of the citizens.

 

Also, I feel that three important aspects were not covered in this case. firstly, access to a fundamental right and secondly, the constitutionality of the suspension rule, and thirdly, whether the right to use internet is a fundamental right, because the world is a global village and shutting down the internet services is depriving individuals of various new opportunities, information, and many such things.

 

 

 

PRECEDENTS

 

1.     1]Ram Jethmalani v. Union of India, (2011) 8 SCC 1.

2.     Indian Express Newspaper (Bombay) Pvt. Ltd v. Union of India, (1985) 2 SCR 287; Sakal Papers Ltd. v. Union of India, (1962) 3 SCR 842; Romesh Thappar v. State of Madras, (1950) SCR 594.

3.     Shreya Singhal v. Union of India, (2015) 5 SCC 1; Secretary, Ministry of Information & Broadcasting Government of India v. Cricket Association of Bengal, (1995) 2.