Category: Case Commentary
Paper Code: CC-SR-07
Page Number: 464 - 467
Date of Publication: February 10, 2021
Citation: Sristi Ray & Kanika Chugh, Anuradha Bhasin v. Union of India, 1, AIJACLA, 464, 464-167, (2021).
Details Of Author(s):
Srishti Ray, Student, National Law University and Judicial Academy Assam
Kanika Chugh, Student, National Law University and Judicial Academy Assam
This article is a brief case commentary on the Supreme Court Judgement of Anuradha Bhasin v. Union of India. The Apex Court, in this case, held that the Right to the internet forms a part of freedom of speech and expression under Article 19(1) (a) of the Indian Constitution and ban of internet in the State of Jammu and Kashmir is violative of it. The court also stated that an order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017.
BACKGROUND OF THE CASE
The issue starts, when Constitutional Order 272 was given by the President, as to use of all arrangements of the Constitution of India to the State of Jammu and Kashmir, and change of Article 367, the Interpretation of it in its application to the State of Jammu and Kashmir. In this manner, the excursion of the outcasts was stopped and arrangements were made for them to return, workplaces and academic organizations were likewise closed down until additional notification. District Magistrates, comprehend penetrate of harmony and quietness, and from that point forced limitations on development and public social affairs by applying Section 144 of the Criminal Procedure Code. On 04.08.2019, internet providers, portable network, and landlines were closed down until additional requests.
The petition was filed by Ms Anuradha Bhasin. She was the editor-in-chief of the Kashmir Times Srinagar Edition who contended that the web is a fundamental component of present-day press. The candidate pointed out the way that print media might conclude without web since the paper had not been distributed from 06.08.2019. In the light of such conditions, the Supreme Court managed the lawfulness of web closure and development limitations were tested under Article 32 of the Constitution.
The main issues raised by the Apex court were -
I. Could the Government claim exemption from producing all orders under Section 144 of CRPC?
II. Does Practice of Article 19(1)(a) and Article 19(1)(g) of the Constitution of India over the internet constitutes a fundamental right?
III. Is the exercise of Prohibiting internet service by the Government valid?
IV. Was the imposition of restrictions under Section 144 of CRPC valid?
V. Was the Freedom of the Press of the petitioner (Anuradha Bhasin) violated due to the restrictions imposed on the State?
ANALYSIS ON THE CASE
The Court while dealing with the first issue held that the Government had to publish all the orders under Section 144 for it to determine the legality of those orders. The apex Court observed that a petitioner should be provided with all the meaningful information necessary for the case to make the Article 32 Right to Constitutional Remedies operative. And as per the interpretation of Article 19 of the Indian Constitution, the Right to information forms an integral part of Freedom of Speech and Expression.
Moreover, with regards to the principles of natural justice, any order that affects the life, liberty, and property must be made available to its citizens except for a countervailing public interest or a special privilege, which in turn also is decided by the Court weighing against the Right to Information.
In the present case, the contention of the State that the orders could not be produced due to certain difficulties was not held valid.
Though the Court did not discuss the issue of access to the internet as a Fundamental Right, referring to various judicial pronouncements it held that the Freedom of Speech and Expression under Article 19(1)(a) and the Right to carry on any trade, business under Article 19(1)(g) through the means of Internet was constitutionally protected. Thus, this right could be curbed based on reasonable restrictions under Article 19(2) and 19(6).
The Court further held that whether restrictions could mean complete prohibition was a matter of fact, which had to be determined by the Court based on facts and circumstances of each case. Therefore, it was held that the practice of Article 19(1)(a) and Article 19(1)(g) of the Constitution of India over the internet constitutes a fundamental right.
Section 5(2) of the Telegraph Act, 1885 allows the suspension of telecom services in situations of public emergency and/ or public safety. Since the Act does not define these terms, the Court referring to various international instruments held that public emergency has to be a situation of a very serious nature that has to be determined in each case based on the facts and circumstances. Moreover, as per Rule 2(2) of Suspension Rules, 2017 the suspension of telecom services, has to be a reasoned order indicating that such a drastic step can only be taken out of necessity, in times when it is unavoidable. In facilitation of same, the Court held that any shortening of Fundamental right should be relative and that the most un-prohibitive techniques should be forced by the state to accomplish the object of the enactment or any regulatory request.
Dismissing the State's contention of being not able to impede particular access because of technical reasons, the Court held that if such a dispute is acknowledged, at that point a free grant would be given to a complete blockage of internet, each time. Considering the rule of proportionality, the court held that indefinite suspension was impermissible.
Subsequently, the activity of the government in disallowing the internet access was held to be invalid.
The Court observed that the power under Section 144 being remedial is also preventive and thus restrictions under this Section can be imposed in circumstances of danger and apprehension of danger. But since the application of this Section curtails the Fundamental Rights of the citizens, it cannot be imposed casually and material facts have to be presented to prove its legality. The Court also held that it cannot be imposed to curtail the right of expression of opinion and cannot be imposed repetitively. Mere disturbance in law and order does not necessarily lead to a breach of public order.
Thus, the imposition of restrictions under Section 144 was held invalid.
In this issue, the Court observed that the Freedom of Press, though recognized in India long back, could be curtailed in certain situations. In the present, case the petitioners could not prove that the restrictions on movement imposed by the government restricted the publication of newspapers. Therefore, the Court rejected the contention of the petitioner that the restrictions imposed by the government, curtailed the Freedom of the Press.
The judgment didn’t give prompt help to the residents affected because these requests yet set down standards for future suspension orders and their strategy to forestall the state for abuse of power. This is an answer for additional issues.
The Internet has become an instrument for spreading a major chunk of significant news or is vital for a two-way discussion. It has become an indispensable piece of the life of individuals. In a circumstance, for example, today’s, the conditions of COVID- lockdown, wherein as a result of the web, students all over the world can have access to education even after staying at home, individuals around the globe can work and bring in cash for their living.
In a circumstance, for example, this web assumes a critical job, which presently has become a right in the context of Right of Freedom and Expression under Part III of the Indian Constitution.
To look at it from a positive perspective of the judgment, the Apex Court has set some hard boundaries on Internet closures with accentuation on proportionality and sensibility. The need to give well-contemplated arrangements alongside the command to unveil everything requests could bring about a decrease of discretionary closures. Eliminating the smokescreen from closures itself could help in diminishing the number of closures. The Kerala High Court Judgment discusses the Right to Education and the Right to Privacy. These rights are not considered in the Judgment. The number of shutdowns in 2020 would decide if this judgment has helped in securing the fundamental rights of the resident.
 2019 SCC OnLine SC 1725.