ANURADHA BHASIN V. UNION OF INDIA
(2020) 3 SCC 637
Ms Divya Gautam
The largest democracy of the world known for its ideals and utter belief in institution of democracy was questioned in the highest court law of the country for its unexplainable action of restricting movement in the region, taking down the internet connectivity and mobile network services in a whole region i.e. Kashmir in the State of Jammu and Kashmir in apprehension of violence and breach of public tranquility since the area is already prone to militant activities. However, the question that needed immediate attention was whether the trade of freedom for security is a viable option in a country which boasts an ideal democracy. In the below discussed case of Anuradha Bhasin v. Union of India, the question herein was given due consideration by the judiciary. The judiciary reaffirmed the principle of proportionality and explained the importance of balancing freedom of the people and security of the region.
FACTS OF THE CASE
On the historic day of 05.08.2019, through a constitutional order passed by the Mr. President, implementing the Constitution of India absolutely to the state of Jammu and Kashmir. The District Magistrate realized the gravity of the state of affairs on the particular day, he imposed section 144, Cr.P.C by virtue of his administrative power, restricting movement and public gatherings, fearing breach of peace and tranquility. Further, orders were issued by the authorities, shutting down internet, mobile and fixed line services, fearing that technology could be used to instigate violence and to curb spread of misinformation.
Aggrieved by the actions of the administration, the Petitioners, one of them is editor of a renowned newspaper daily of the Kashmir who faced trouble in journalizing due to ban on internet connectivity and ban of movement in the region, approached the Apex court for rescue, seeking relief in form of appropriate writ under article 32. They challenged the action of authorities and demanded for restoration of internet service and mobile network so that journalists and media could perform their duties.
ISSUES BEFORE THE COURT
The court framed the following questions of law,
Whether the freedom given under Article 19 (1) (a) and Article 19 (1) (g) over the internet is a part of the fundamental rights under the Constitution of India?
Whether administrative action prohibiting access to the internet is valid?
The first issue was pertinent and needed application of mind by the judiciary, here before answering the question, the nature of fundamental rights provided under Part III were discussed. It is settled that rights extended are cautiously negatively worded by the framers since they were aware of the socioeconomic bearing of such active duty.
Highlighting the importance of the internet in today’s technologically advanced world, the Court said “The revolution within the cyberspace has been phenomenal in the past decade, wherein the limitation of storage space and accessibility of print medium has been remedied by the usage of internet.” Quoting one of the fathers of the internet, Mr. Vinton Cerf, the Court remarked that the internet is an enabler of the rights and cannot be elevated to the status of right itself. Hereby, meaning that the internet may be crucial for realization of the rights however internet itself cannot be a right.
The court emphasized on the importance of the development of law in accordance with prevailing technology so as to cater to the needs of the society. There is no iota of doubt that the right to disseminate information to the society is covered under the ambit of freedom of speech and expression.
The well settled rule is that print medium, exhibiting films on the Doordarshan are part of the fundamental right of freedom of speech and expression. Hence, the medium of dissemination of information changed over the years and the Court had recognized those mediums to be covered under the umbrella of article 19(1)(a). Therefore, keeping in mind the contemporary relevance of the internet, the freedom of speech and expression through the channel of the internet is an integral part of Article 19 (1)(a) and any restriction upon the same must comply with Article 19(2).
The global economy vastly relies on the internet for certain trade and commercial transactions. The internet has made its space business world as well. India has turned into an IT hub and many business models rely upon the usage of the internet for their functioning. Therefore, the freedom of trade and commerce through the medium of the internet is under the ambit of article 19(1)(g) and restrictions are subject to article 19(1)(6).
Coming to the restrictions stated under Article 19, the balancing and proportionality of the interests is important. The case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Zamat was referred, wherein, “(i) Restriction on free speech and expression may include cases of prohibition. (ii) There should not be excessive burden on free speech even if a complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain as to why lesser alternatives would be inadequate. (iii) Whether a restriction amounts to a complete prohibition is a question of fact, which is required to be determined by the Court with regard to the facts and circumstances of each case.”
The situation in Kashmir region of Jammu and Kashmir state was also kept in mind. In recent years, the internet is being used as a tool to spread hatred and violence among the masses. Many terrorist organisations used the internet to recruit and influence young people and teenagers. The internet does not discriminate upon the content available online. Thus, young minds are largely vulnerable to such content and are easy targets. The identity of such content makers may remain anonymous which makes it non-traceable in nature. It is a powerful tool to spread propaganda as well since news, videos, pictures and information available online is not verified by any reliable source.
For the purpose of a better explanation, the Court took into consideration an example of the United State of America wherein it was observed that at many instances including World War I laws were passed to curb and control dissent which could possibly incite violence and negative sentiments during such sensitive times.
The concept of proportionality is crucial while talking about balancing different interests. There is a need to maneuver cautiously for maintaining balance between security and liberty of the people. The landmark decision of K S Puttaswamy v. Union of India holds a primary position in this regard. The Court said that “Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.”
The proportionality principle was embodied in the Indian Constitution as “reasonable restriction” in Article 19, without which the expression of fundamental rights is not possible. These restrictions ensure that enjoyment of rights is not arbitrary or excessive, so as to affect public interest. The principle emphasize that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”.
In the case of Modern Dental College & Research Centre v. State of M.P.as referred by the Court in present case, the doctrine of proportionality follows as a limitation of a constitutional right will be constitutionally permissible if:
“(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose;
(iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally
(iv) there needs to be a proper relation between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.”
The exercise which is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values and balancing of different interests.
This Court intended to observe that achievement of peace and tranquility within the State of Jammu and Kashmir requires a multifaceted approach without excessively burdening the freedom of speech. In this regard the Government is required to consider various options under Article 19(2) of the Constitution, so that public interests shall be preserved without compromising security and integrity of the state.
The court further delved into the Telegraph Act for understanding the shutdown of the internet in a statutory manner, Section 5 (2) deals with Power for Government to take possession of licensed telegraphs and to order interception of messages. The occurrence of a public emergency is the sine qua non for the exercise of power under this section. “The act empowered Government to pass an order of interception after recording its satisfaction that it is necessary or expedient so to do in the interest of (i) sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order or (v) for preventing incitement to the commission of an offence.”
The court further laid down that shutting down of the internet or any means of communication shall be done only in situations where there is immediate need to preserve peace. In terms of doctrine of proportionality, permanent termination of the internet is highly impermissible and inappropriate. The restrictions contemplated under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 are temporary in nature, and the same must not be allowed to extend beyond that time period which is necessary. The review Committee was directed by the Court to look at the compliance of orders made under section 5(2) of Telegraph Act and do a periodical review of such orders.
This case is another feather on the cap of fundamental rights worn by citizens of the Country. The court extended constitutional protection covering 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 internet. Further, the orders passed to suspend internet access may be temporary in nature and in accordance with the doctrine of proportionality. Further, directed the competent authority to revoke all the previous orders which are not in accordance with the law and unnecessarily burden the liberty of citizens. Any such suspension order made is subject to judicial review in accordance with the law laid down.
 Shreya Singhal v. Union Of India, (2015) 5 S.C.C. 1.
 Indian Express v. Union Of India , (1985) 1 S.C.C. 641.
 Odyssey Communications Private Limited v. Lokvidayan Sanghatana, (1988) 3 S.C.C. 410.
 (2005) 8 S.C.C. 534.
 (2019) 1 S.C.C. 1.
 (2016) 7 S.C.C. 353.
 Civil Liberties (PUCL) v. Union of India, (1997) 1 S.C.C. 301.