ANURADHA BHASIN V. UNION OF INDIA

 

ANURADHA BHASIN V. UNION OF INDIA

In the Supreme Court of India

 

NAME OF THE CASE	Anuradha Bhasin v. Union of India, (2020) 3 SCC 637
PETITION	Writ Petition(C) No. 1031 of 2019
DATE OF JUDGMENT	January 10, 2020
APPELLANT	Anuradha Bhasin
RESPONDENT	Union of India
BENCH/JUDGE	Hon’ble Justice N.V. Ramana, Justice R. Subhash Reddy & Justice B.R. Gavai.
STATUTES/CONSTITUTION INVOLVED	The Constitution of India;Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017; Telegraph Act, 1885; Information Technology Act, 2000; Criminal Procedure Code, 1973.
IMPORTANT SECTIONS/ARTICLES	The Constitution of India – Arts. 19, 21, 32, 226 & 370   Telegraph Act, 1885 — S. 5(2)   Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017- R. 2    Information Technology Act, 2000 — S. 69-A    Criminal Procedure Code, 1973 — S. 144

ABSTRACT

In the name of protecting public order, severe movement and internet restrictions including suspension of mobiles, landlines, and internet services were imposed in the Jammu and Kashmir region on 4th August 2019. This was followed by the Indian Government issuing the Constitution (Application to Jammu and Kashmir) Order, 2019, which revoked Jammu and Kashmir of its special status offered by Article 370 of the Indian Constitution. Consequently, Section 144 was imposed throughout the territory to maintain peace and security in the state. The Petitioner, Ms. Anuradha Bhasin, the Executive Editor of Kashmir Times (Srinagar Edition) challenged the internet shutdown and movement restrictions in light of being violative of the right to freedom of press and profession incorporated under Article 19 of the Indian Constitution, which guarantees freedom of speech and expression and freedom to carry any trade or occupation in the country.

 

 

INTRODUCTION

The digital revolution is the most important transformative event of contemporary times. The current pandemic further accelerated the shift to virtual space. As the world came to a standstill, all major sectors shifted online, paving the way for complete digitization so that the boundaries between the real and the virtual blurred in unimaginable ways. Due to this shift and the resulting dependence, it has become imperative to recognize the importance of the internet and advocate for its global access. This recognition should ideally come in form of legislation with a two-fold purpose: to put an affirmative obligation on governments to eradicate the digital divide, and to ensure that one’s access to the internet is not restricted arbitrarily.

 

 

 

ANALYSIS & CHALLENGES

The Internet plays very importantly in the development of a nation’s economy and it is an essential part of an individual’s life. Many countries and international organizations have considered internet access rights are one of the basic human rights but in India, by looking at the current legislation and framework for the recognition and regulation of digital rights one can easily figure out how far behind the country is. With most of the Indian population being digitally illiterate, the lack of a separate fundamental right continues to haunt those who are deprived of a world of opportunities available to only those with internet access.

 

·       Internet Shutdowns

According to the data analysis, 437 internet shutdowns were ordered by the Government between 2012 and 2020, putting India on top of the global chart in that regard. Around 60% of shutdowns are “preventive” in nature, ordered in anticipation of a potential breach of law and order. Internet was shut in parts of Assam, New Delhi, Uttar Pradesh, and Rajasthan in wake of protestsagainst the Citizenship Amendment Act, in the same way, it was shut down in Jammu & Kashmir in August 2019, in anticipation of a potential uproar against the abrogation of Article 370.

 

 

·       Lack of Data Protection Legislation

India has not enacted any specific legislation concerning data protection and is also not a party to any international convention or declaration on personal data protection. Having a separate Fundamental Right to Internet would bring with it other ancillary rights (such as protection of personal information and data) and their protection on the internet. The Indian Parliament would hence be compelled to draft a proper data protection legislation based on discussion and deliberation while keeping in mind the (potential) constitutionally protected fundamental right to the internet.

 

FACTS

In the name of protecting public order, severe movement and internet restrictions including suspension of mobiles, landlines, and internet services were imposed in the Jammu and Kashmir region on 4th August 2019. This was followed by the Indian Government issuing the Constitution (Application to Jammu and Kashmir) Order, 2019, which revoked Jammu and Kashmir of its special status offered by Article 370 of the Indian Constitution. Consequently, Section 144 was imposed throughout the territory to maintain peace and security in the state. The Petitioner, Ms. Anuradha Bhasin, the Executive Editor of Kashmir Times (Srinagar Edition) challenged the internet shutdown and movement restrictions in light of being violative of the right to freedom of press and profession incorporated under Article 19 of the Indian Constitution, which guarantees freedom of speech and expression and freedom to carry any trade or occupation in the country.

 

A similar petition was filed by Ghulam Nabi Azad, an Indian politician of the Indian National Congress and current Leader of Opposition in Rajya Sabha, seeking issuance of an appropriate writ to set aside or quash any orders, notifications, directions, or circulars issued by the Government by all the modes of communication that have been shut down. Moreover, Petitioners also sought to issue directions for enabling an environment for the media to practice their profession and ensuring free and safe movement of reporters and journalists so they can exercise their right to freedom of speech and expression, and right to movement. The two petitions were merged and brought before the Supreme Court with due submissions and documentation.

 

 

 

 

 

ISSUES

 

v  Whether the Government claims exemption from producing all the orders passed under Section 144, CrPC, and other orders under the Suspension Rules?

 

v  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 a part of the fundamental rights enshrined under Part III of the Constitution?

 

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

 

v  Whether the imposition of restrictions under Section 144, CrPC valid?

 

v  Whether the freedom of the press of the Petitioner violated due to the restrictions?

 

 

 

 

 

 

 

 

 

JUDGMENT

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. The power under section 144, code of criminal procedure, being remedial as well as preventive, was exercisable not only when there exists present danger, but also when there was an apprehension of danger. However, the danger contemplated should be like an emergency to prevent obstruction and annoyance or injury to any person lawfully employed.

 

The freedom of speech and expression and the freedom to practice any profession or carry on 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 align with the mandate under Article 19(2) and (6) of the constitution, inclusive of the test of proportionality. 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 a temporary duration only. Any order suspending the internet under the suspension rules was subject to judicial review based on the parameters set out. This court directs the respondent state/competent authorities to review all orders suspending internet services forthwith.

 

In any case, the state/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e-banking facilities, hospital services, and other essential services in those regions, wherein the internet services are not likely to be restored immediately.

 

 

 

CRITICAL ANALYSIS - JUDGMENT FALLS SHORT OF SOLVING PROBLEMS IN INDIA

 

It was in 2019, in Fahima Shrin v. the State of Kerala, that the first Indian High Court recognized that the Right to Internet access forms a part of The Right to Privacy and The Right to Education under Article 21 of The Constitution. The second landmark judgment was delivered by the Supreme Court of India, following in the footsteps of the Faheema Shirin case.

 

The court, in its decision, stood one step away from declaring the Right to Internet as a separate fundamental right, and instead, held that the internet is a medium through which other fundamental rights are exercised. The first thing to be understood in this judgment is that it has limited scope, as it was delivered in a particular context. The petition only challenged the validity of the orders of the executive authorizing internet shutdowns. The Court then scrutinized those orders given the importance of the internet in the present world and its connection with fundamental rights. This judgment falls short of solving the above-mentioned problems as

 

v  It does not guarantee a separate Right to Internet leading to arbitrary restrictions.

v  It does not put any substantive obligation on the States concerning the Right to Internet

 

The Court, while holding that Right to Freedom of Expression and Right to Freedom of the Press [Article 19(1)(a)] and the Right to carry on any trade [Article 19(1)(g)] on the online platform are constitutionally protected, made an important distinction - that internet in itself is not a fundamental right, but is only a means by which other constitutionally protected fundamental rights are exercised. Hence, any restriction on the internet would have to meet the reasonable restriction criteria under Article 19(2) and/or Article 19(6). Furthermore, if someone is to consider the internet as a right in itself by an extension, it would still not have a proper separate criterion for regulation and restriction and would have to be an ancillary right under Article 19. This, perhaps, could also be attributed to the fact that no such relief was asked for by the petitioners, and hence remained outside the scope of the judgment. However, the problem of the digital divide, internet penetration, and lack of data protection legislation can never be solved unless the State takes it upon itself to take all suitable measures necessary for the same.

 

 

FINDINGS

 

v  The Right to Internet Access forms a part of The Right to Privacy and The Right to Education under Article 21 of The Constitution.

 

v  The Right to Freedom of Speech and Expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of the internet is constitutionally protected.

 

v  The Court made an important distinction that the internet in itself is not a fundamental right, but is only a means by which other constitutionally protected fundamental rights are exercised.

 

v  Furthermore, if someone is to consider the internet as a right in itself by an extension, it would still not have a proper separate criterion for regulation and restriction and would have to be an ancillary right under Article 19 and Article 21.

 

 

CONCLUSION

 

 

It is well established that our transition to complete digitization is almost complete, and it is high time that we have a universal right to access the internet. A post-pandemic world will operate largely on digital spaces which exclude those bereft of internet connectivity. However, it is also to be noted that the pandemic only worked as a catalyst for acceleration and that the internet was already growing at a rapid rate by bringing almost all sectors under its ambit.

 

The recognition of the importance of the internet by courts in India has slowly paved the way for the recognition of a separate Fundamental Right to access the internet. To make sure that internet access isn’t just a privilege of the privileged, and to ensure minimal restrictions on access of the same, the first step would be to recognize it as a separate Fundamental Right. Also, this case can be a ray of hope in darkness as the Court held, in this case, Freedom of Speech and Expression over the internet is a fundamental right so in the future the court, in subsequent cases might hold that Right to use the internet is a fundamental right, because the world is a global village and not being able to use the internet is depriving individuals of various new opportunities, information, and many such things. Internet shutdown puts halt to the quick functioning of various necessities which emerges as a hindrance to the growth of the State. Therefore, it can be said that with time, the doctrines held in this case will age well and can be used more judiciously to render justice.