LEGAL SPECS

 

CASE COMMENT

Anuradha Bhasin Vs Union of India, (2020) 3 SCC 637

Equivalent Citations: 2020 SCC Online SC 25; Ghulam Nabi Azad Vs Union of India

Author:Mahika Bisht

Bench: Hon’ble Justice N.V.S Ramana

Petitioner:…………………………………….” Anuradha Bhasin and Ors.”

V.

Respondent:……………………………………….” Union of India and Ors.”

 

DATE OF JUDGEMENT –10/01/2020

Bench:

JUSTICE N.V.S RAMANA

JUSTICE R. SUBHASH REDDY

JUSTICE B.R. GAVAI

 

CITATION:

2020 SCC Online SC 25

Ghulam Nabi Azad Vs Union of India

 

BRIEF FACTS OF THE CASE :

Jammu and Kashmir, India’s territory, has been the subject of decades of conflict between the two neighbouring countries, India and Pakistan. On August 5, 2019, the Government of India issued Constitutional Order 272 in an “agreement” with the “Jammu and Kashmir State Government”. The Constitutional Order (Applicable to Jammu and Kashmir) in 2019, applied all provisions of the Indian Constitution to Jammu and Kashmir and deprived them of the “special status” under Article 370 of the Indian Constitution that they were enjoying since 1954.

The problem began on August 2, when the Civil Secretariat,  Home Department , Government of Jammu and Kashmir advised the Amarnath Yatra pilgrims and visitors  to leave the state in the days running up to the Constitutional  Order. Schools and offices were also closed  till further notice as a result of this. The region’s internet, mobile phone networks, and landline access were all turned off on August 4, 2019. The District Magistrate issued an order restricting freedom of movement of public gathering in the event of breach  of peace and tranquility, using Section 144 of the Code of Criminal Procedure, 1973 as authority. The petitioner, Ms. Anuradha Bhasin, executive director of the newspaper Kashmir Times, argued that the government’s internet shutdown and movement restrictions were in violation of Article 19 of the Indian Constitution, which guarantees freedom of speech and expression as well as freedom to carry out any trade or occupation. Mr. Ghulam Nabi Azad, a Member of Parliament from India’s main opposition party, has filed a similar plea, asking for the issuing of an appropriate writ to invalidate any order issued by the government that shuts down all channels of communication. In addition,  the petitioner requests that an appropriate write be issued instructing respondents to restore all channels of communication by taking the necessary actions to ensure the free movement of journalists and reporters.

In this regard, the Supreme Court of India considered the petitions challenging the legitimacy of Internet shutdowns and movement restrictions under Artilce 32 of the Constitution.

 

PROVISIONS OF LAW INVOLVED:

1.    Constitution of India : Article 19(1) and Article 19(1)(g).

2.    Code of Criminal Procedure, 1973 : Section 144.

3.    Information Technology Act, 2000.

4.    Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules,2009.

5.    The Telegraph Act, 1885.

6.    The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

 

 

ISSUES OF THE CASE:

1.    Whether the government claim an exemption from having to produce all orders under Section 144 of the Code of Criminal Procedure,1973, and the suspension rules?

2.    Whether freedom of speech and expression, as well as the freedom to exercise any profession, trade or business on the internet, protected by Article 19(1)(a) and 19(1)(g) of the Constitution?

3.    Whether the exercise of Prohibiting internet service by the Government is valid?

4.    Whether the imposition of curtailments under Section 144 of the Code of Criminal Procedure, 1973 were valid?

5.    Whether the freedom of the press of petitioner was violated due to the restrictions imposed?

 

CONTENTIONS:

 

Arguments given by petitioner

1.    It was claimed that due to the lack of internet, print media had ceased to function, which is a crucial component of modern journalism, and that the petitioner had been unable to work after August 5, 2019 due to various constraints imposed.

 

2.    The petitioner wanted a “reasonableness and proportionality” test since any regulation restricting freedom of speech and expression must pass the aforementioned standard.

 

 

3.    The indefinite suspension of telecom services was arbitrary and in violation of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, which contemplated that the restrictions imposed on telecom services would be of a temporary nature, implying that there was no application of mind and no reasoning justifying the restrictions, as required by the suspension rules.

 

4.    The conditions at the time the orders were issued did not justify the imposition of limits.

 

 

Arguments given by the respondent:

1.    The sanctions were allegedly adopted in response to the rising frequency of internal militancy and cross-border terrorism in that state of Jammu and Kashmir.

 

2.    The  limits were implemented to ensure citizen safety based on ground reporting, and the petitioners’ facts were erroneous.

 

 

3.    Unlike newspapers, the internet is incredibly fast and useful for communication from both sides, and it may be used to distribute fraudulent messages and encourage violence, as it has been many times before the repeal of Article 370.

 

4.    Limits were applied based on danger perception and were removed where they were not required, such as in Ladakh and other parts of Jammu where restrictions were not placed, demonstrating that the suspension regulations were not  imposed arbitrarily.

 

 

JUDGEMENT:

1.    The court ordered the respondent  to disclose all the restrictions orders issued, so that, unlike the petitioners, anybody can now file a lawsuit against any order they believe breaches their rights.

 

2.    Article 19(1)(a) and 19(1)(g) of the Constitution defend the freedom of speech and expression, as well as the right to practise any profession or carry on any occupation, trade, or business over the internet.

 

 

3.    Articles 19(2) and 19(1) provide the government the authority to restrict the aforementioned rights.

 

4.    The power under section 144 of the CrPC can be used not only when there is a current threat, but also when there is a reasonable fear of danger, but not to supress any lawful expression of opinion, grievance or exercise of democratic rights.

 

 

5.    Orders that are not in conformity with the rule of law must be rescinded, and if the need for new orders arises in the future, the law outlined must be followed.

 

RATIO DECIDENDI:

1.    The limitations proved to be fair and transient. The court ordered the respondent to reconsider and lift indefinite suspension orders because  he had some restrictions indefinitely.

 

2.    The exercise of the power under section 144 of the CrPC should be justified and material facts must be presented to allow for judicial review.

 

 

3.    Despite the facts that the chilling effect of the restrictions could not be proven in this case and the fact that the petitioner had resumed work, the court did not further into details and instead asked the government to respect media freedom and provide them with a safe working environment free of undue influence.

 

CONCLUSION AND SUGGESTIONS :

In  this case, the court rendered multiple decisions. To summarise, the Supreme Court ruled that the government cannot claim immunity from having to produce any order issued under section 144 of the Code of Criminal Procedure 1973, or the suspension provisions. The question of whether the government can claim exemption will be resolved by the court on a case-by-case basis, based on the facts and circumstances. Furthermore,  the court held that because the internet is now an integral part of daily life, the right to freedom of speech and expression, as well as the right to conduct trade, occupation or business over the internet, is a part of the fundamental right enshrined in part III of the Indian Constitution.

Concerning issue 1, the court ordered the state to provide all orders that led to the installation of section 144 of the Code of Criminal Procedure, 1973, on the internet and other telecom services. The court’s directive is warranted because the restriction infringed on citizens’ fundamental rights. As a result, citizens have a right to know why the government adopted such limits.

The court’s decision, in my opinion, established the principles of proportionality and fairness. However, given that a complete ban on the ban internet would have been disastrous for the state’s economy, the court’s remedy falls short of expectations. Because banning the internet is the simplest thing to do, the government should not do it arbitrarily, but rather deal with it through democratic processes that do not jeopardise citizens’ essential fundamental rights.

In addition, I believe that the three essential part of this case were this were overlooked. First, whether access to a fundamental right is a fundamental right; second whether the suspension rule is constitutional; and third, whether the right to use the internet is a fundamental right, because the world is a global village, and shutting down internet services deprives individuals of new opportunities, information, and many other things.