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this petition was withdrawn during the arguments.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.
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